Arbitration  and  Wage -Fixing 
in  Australia 


Research  Reiyort  Number  10 
October,    1918 

Rejtrinted,  May^  1920 


National  Industrial 
Conference  Board 


y^,& 


*  ^  1932 


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^Uto. 


Form  L-9-10m-3,'2'; 


Southern  Branch 
of  the 

University  of  California 

Los  Angeles 

Form  L  I 


ARHITRATION  AND  Wy\(;H-FIXING 
IN    AUSTRALIA 


UNIVERSITY  of  CALIFORNIA 

AT 

LOS  ANGELES 

LIBRARY 


Research  Report  Number  10 
October,  1918 

Reprinted  May,  i<)20 


Copyright  1918 


National  Industrial  Conference  Board 

15  Beacon  Sireet 
Boston,  Mass. 


91901 


-A 

"  CONTENTS 

PAGE 

I.     Introduction       1 

J    II.     The  Wages  Boards  of  Victoria 4 

i                   Principles  upon  which  Wages  Boards  Work  7 

v<                    General  Results      9 

Summary       13 

III.  The  Arbitration  System  of  New  South  Wales   .  15 

Contrast  with  Victoria 15 

\                    Development  of  the  System 17 

f^                           Industrial  Arbitration  Act  of  1901    .    .  17 

\                           Industrial  Disputes  Act  of  1908    ....  19 

i^\^                         Industrial  Arbitration  Act  of  1912      .    .  19 

Amending  Act  OF  1918 20 

Administrative  Machinery 21 

Results  of  the  System 25 

.                            Statistical  Basis 25 

^                           Disproportion.\te  Influence  of  the  Min- 
ing Industry 26 

General  Summary 29 

IV.  The  Commonwealth  Conciliation  and  Arbitra- 

,                          TioN  Act       31 

^                      Comparison  with  the  New  South  Wales  Act  31 

Administrative  Machinery 32 

Principles  in  the  Fixing  of  Wages      ....  34 

V.     General  Results      39 

Results  on  Wage-Fixing 40 

Settlement  of  Disputes 42 

VI.     Conclusions 45 

Appendices "^^ 


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LIST  OF  TABLES 

PAGE 

Table  1 :     Industrial    Agreements,    New    South    Wales, 

1902-1916 23 

Table  2:  Number  and  Percentage  of  Industrial  Disloca- 
tions in  New  South  Wales,  1908-1916,  according  to 
Industries,  Mining,  and  Non-Mining      26 

Table  3:  Industrial  Disputes,  Number  and  Magnitude 
in  the  Mining  Industry  in  Australia  and  in  New  South 
Walesand  Victoria,  1913-1917 2^ 

Table  4:     Cost  of  the  Industrial  Boards  of  New  South 

Wales  for  1909-1916 29 

Table  5:  Changes  in  Rates  of  Wages  Classified  Accord- 
ing to  Methods  by  Which  Effected.  Commonwealth 
of  Australia  1913-1917 40 

Table  6:     Methods  of  Settlement  of  Industrial  Disputes, 

Commonwealth  of  Australia,  1913-1917 42 


Foreword 

THE  operation  of  compulsory  arbitration  of  industrial 
disputes  in  Great  Britain  in  wartime,  the  numerous 
industrial  disputes  and  the  various  measures  of  mediation 
and  arbitration  adopted  in  our  own  country,  have  given 
a  particularly  timely  interest  to  a  study  of  experience 
with  labor  legislation  designed  to  prevent  or  reduce  indus- 
trial friction. 

An  earlier  report  from  the  National  Industrial  Confer- 
ence Board  dealt  with  the  Canadian  Industrial  Disputes 
Investigation  Act.  The  present  report  discusses  the 
operation  of  arbitration  and  wage-fixing  legislation  in 
Australia. 


Arbitration  and  Wage -Fixing 
in  Australia 

I 

INTRODUCTION 

In  efforts  to  minimize  the  clashes  between  employer  and 
employee  which  have  characterized  modern  industrial 
history,  the  various  states  of  the  Commonwealth  of 
Australia  and  the  Dominion  of  New  Zealand  have  been 
leaders.  They  have  become  laboratories  of  social  experi- 
ment wherein  radical  ideals  have  been  readily  put  to  the 
test  of  practical  evaluation  through  legislative  enactment. 
Many  factors,  essential  to  an  understanding  alike  of  the  ex- 
periment and  of  its  success  and  failure,  contribute  to  this 
readiness.  The  population  of  Australia  is  homogeneous; 
almost  98  per  cent  of  it  is  of  British  stock. 

The  Australian  people  accept  a  practical  State  Socialism. 
They  are  ready  to  endorse  social  ideals  and  give  them  legisla- 
tive and  economic  expression.  Their  political  system,  in 
which  the  laboring  class  has  full  weight,  lends  itself  to  that 
ready  adaptation  called  for  by  a  process  of  political  experi- 
mentation. Their  freedom  from  pressing  matters  of  foreign 
policy,  and  the  nature  of  their  administrative  tasks  in 
internal  affairs,  allow  room  for  that  preoccupation  with 
industrial  legislation  which  characterizes  most  of  the 
states,  lience,  once  started  upon  a  program  ot  social 
reform,  they  have  followed  it  out  towards  the  suppression 
of  sweating,  the  fixing  of  a  minimum  wage,  and  the 
establishment  of  methods  of  conciliation  and  arbitration 
for  the  settlement  of  industrial  disputes. 

Strictly  interpreted,  conciliation  is  a  method  for  securing 
a  peaceable  settlement  of  industrial  disputes  by  bringing 
together  employers  and  employees  tor  discussion  and 
negotiation.  The  machinery  for  settlement  may  be  either 
an    informal    conference    or    a    constituted    court.       Its 

1 


initiation  depends  on  a  mediator  whose  duty  is  to  get  the 
parties  into  touch  and  keep  them  on  the  problem.  He 
never  takes  sides,  nor  gives  an  opinion,  nor  votes  on  any 
issue  before  the  parties. 

Compulsory  arbitration,  on  the  other  hand,  consists  in 
the  Government  compelling  employers  and  employees  to 
meet  before  a  court  or  board  which  shall  decide  their 
differences.  Compulsion  enters  in  at  every  step.  In  some 
cases  the  notification  of  a  dispute  is  compulsory;  in  every 
instance  the  difference  must  be  submitted.  As  the  matter 
is  invariably  taken  before  some  form  of  court,  witnesses 
are  called,  under  compulsion,  to  give  evidence  and  produce 
papers  and  books  necessary  for  full  inquiry.  The  same 
compulsion  applies  to  the  publication  of  an  award  by  the 
court,  to  its  observance  under  penalty,  and  to  abstinence 
from  strikes  and  lockouts. 

Neither  of  these  methods  exists  in  its  pure  form  in 
Australia.  The  state  of  Victoria  presents  one  of  the  most 
perfectly  developed  systems  of  conciliation  to  be  found 
anywhere  in  industrial  history.  But  it  is  not  optional  in 
character  nor  purely  conciliatory  in  method.  The 
machinery  by  which  it  works  is  a  Wages  Board  created 
by  the  state,  and  the  members  of  this  Board  are  nomi- 
nated by  a  Minister  of  State.  He  has  power  also  to  refer 
a  matter  to  the  Board,  though  no  effective  result  can 
be  obtained  without  initiation  by  either  employers  or 
employees.  The  award  of  the  Board  is  enforced  by  state 
officials.  Thus,  behind  the  machinery  for  conciliation 
provided  in  Victoria  stands  the  compelling  power  of  the 
state. 

This  is  equally  true  of  the  Court  of  Arbitration  of  the 
Commonwealth,  whose  President  has  the  power  to  sum- 
mon a  compulsory  conference  of  conciliation.  The  Presi- 
dent is,  however,  a  mediator  in  this  conference.  On  the 
other  hand,  the  chairman  of  a  Wages  Board  in  Victoria, 
unlike  a  mediator,  is  called  upon  to  express  an  opinion 
and  give  a  deciding  vote. 

Most  of  the  characteristics  of  compulsory  arbitration 
are  found  in  every  state  in  Australia  except  Victoria; 
moreover,  the  Commonwealth  Court  itself,  on  the  failure 
of  the  conciliation  conference,  becomes  a  court  of  com- 
pulsory arbitration.  The  New  South  Wales  system  began 
definitely    as    one    of   compulsory    arbitration.     Yet,    as 

2 


investigation  will  show,  there  is  a  large  and  increasing 
element  of  conciliation  within  this  system  of  compulsion. 
While,  however,  these  two  systems  are  not  absolutely 
separated,  the  history  and  analysis  of  their  concurrent 
operation  furnish  a  measure  of  their  relative  value,  and 
of  the  forces  and  circumstances  which  direct  the  trend 
and  determine  the  effectiveness  of  one  or  the  other. 

No  complete  grasp  of  the  significance  of  conciliation 
and  arbitration  policies  in  the  Australian  Commonwealth 
can  be  had,  particularly  by  American  readers,  without  a 
full  appreciation  of  some  of  the  radical  differences  which 
characterize  the  substructure  of  industrial  relationships  in 
the  two  countries.  In  Australia  the  principle  of  unioniza- 
tion of  labor  is  not  merely  passively  accepted,  but  actually 
fostered,  a  situation  radically  different  from  that  which 
obtains  in  the  United  States.  The  activities  of  unionism 
do  not  run  to  a  struggle  for  the  opportunities  of  organiza- 
tion and  the  establishment  of  the  closed  shop.  Rather 
are  they  devoted  to  political  organization,  and,  in  in- 
dustry, to  the  maintenance  of  the  generally  accepted  union 
shop. 

A  practical  result  of  this  situation  is  that  conciliation 
and  arbitration  in  the  Australian  states  have  been  con- 
cerned mainly  with  wage  controversies  and  disputes  other 
than  those  concerning  trade  unionism.  Indeed,  in 
Victoria,  the  conciliation  program  has  dealt  chiefly  with 
wage  problems  in  one  form  or  another,  either  in  the 
suppression  of  the  sweating  evil  or  in  the  establishment  of 
what  is  termed  a  living  wage.  Likewise,  the  arbitration 
system  of  the  Commonwealth  Court  has  centered  chiefly 
on  wage  adjustments,  though  extending  to  many  details 
of  industry.  The  arbitration  system  brings  practically  all 
conditions  of  industry  under  review.  As  a  consequence, 
the  regulation  of  wages  and  of  industry  generally  has 
become  a  function  of  the  state  to  an  extent  unknown  in 
America,  even  under  war  conditions. 

These  differences,  apart  from  those  arising  out  ot 
different  political  constitutions,  are  fundamental,  and  not 
only  must  be  recognized  in  any  attempt  to  interpret  the 
history  of  conciliation  and  arbitration  in  Australia,  but 
also  must  obviously  influence  conclusions  as  to  the 
applicability  of  Australian  experience  to  the  American 
commonwealths. 


II 

THE  WAGES  BOARDS  OF  VICTORIA 

The  Victorian  system  of  conciliation  operates  through 
what  are  called  Wages  Boards.  Representatives  of  em- 
ployers and  employees  are  brought  face  to  face  in  the 
presence  of  an  impartial  chairman  for  the  settlement  of 
specified  industrial  matters.  Because  of  their  familiarity 
with  the  trade  they  represent,  the  members  have  been 
characterized  as  "  a  jury  of  trade  experts."  Consequently 
they  do  not  need  to  call  evidence,  nor  to  enter  upon  any 
of  the  methods  of  a  court.  This  makes  possible  a  simple 
and  inexpensive  form  of  procedure.  The  Boards  them- 
selves are  constituted  by  action  on  behalf  of  the  state, 
which  exercises  sufficient  compulsion  to  insure  that  the 
machinery  will  function.  Their  jurisdiction  is  restricted 
to  fixing  wages  and  settling  conditions  of  employment. 
Because  of  the  larger  stress  laid  upon  wages,  the  system 
may  be  described  as  one  of  collective  bargaining  through 
conciliation  with  simple  and  inexpensive  machinery  pro- 
vided by  the  state. 

This  machinery  is  not  definitely  based  on  unionism.  In 
Victoria,  as  in  Australia  generally,  the  principle  of  the 
closed  shop  is  accepted  and  endorsed.  In  the  arbitration 
system  of  New  South  Wales  and  the  Commonwealth, 
unionism  is  the  basis  of  the  arbitration  machinery.  In 
Victoria  unionism  exists,  but  is  not  so  strong  nor  so 
militant.  Unions  frequently  originate  the  discussions  and 
agitations  which  lead  to  the  creation  of  conciliation 
machinery,  but  are  given  no  legal  recognition  and  receive 
no  additional  strength   therefrom. 

The  Wages  Boards  belong  logically  to  the  factory 
legislation  of  the  state.  They  arose  out  of  a  protest  against 
sweating.  This  protest  led  to  the  appointment  of  a  Royal 
Commission  which  in  1884  advocated  Courts  of  Concilia- 
tion as  a  remedy,  laying  down  the  following  as  the  principle 
of  their  procedure:  "To  enable  disputants  to  meet  on 
equal  terms;  to  limit  the  dispute  to  those  concerned  and 
the  decision  to  those  who  understand  the  merits  of  the 


case."  This  Commission  found  that  sweating  existed  and 
was  identified  with  the  methods  of  sub-contracting  and 
out-work.  A  further  agitation  from  1890  onward  led  to 
another  parliamentary  report  which  advocated  measures 
for  the  abolition  of  sweating.  The  result  was  the  Fac- 
tories and  Shops  Act  of  1896,  in  which  the  principle 
advocated  in  1884  was  adopted.  Special  Hoards  were 
created  for  four  of  the  worst  sweated  trades,  namely, 
clothing,  boots  and  shoes,  furniture,  and  bread.  This 
act  was  renewed  in  1900  for  two  years  and  the  butchers' 
trade  added  to  the  list  of  trades.  In  the  same  year  a 
Royal  Commission  was  appointed  to  inquire  into  the 
working  of  the  Boards  and  of  legislation  on  similar  lines  in 
other  Australasian  states.  The  Commission  showed 
marked  dissatisfaction  with  the  work  of  the  Boards, 
recommending  their  abolition  and  the  substitution  ot 
arbitration  on  the  New  Zealand  model.  The  Parliament 
of  1902,  however,  continued  the  system,  adding  to  it  a 
Court  of  Industrial  Appeals.  Subsequent  changes  have 
not  affected  the  form  of  administration,  tending  generally 
to  extend  its  scope.  Boards  may  now  cover  any  occupa- 
tion. They  may  have  jurisdiction  over  the  whole  state, 
though  rural  Boards  may  be  formed  for  rural  districts. 
Thus,  a  system  directed  against  sweated  wages  in  a  few 
trades  has  now  become  a  definite  system  for  wage-fixing  in 
almost  any  trade.  Originally  restricted  to  Melbourne,  the 
chief  city,  its  jurisdiction  has  now  been  extended  through- 
out the  whole  state. 

A  Wages  Board,  called  a  Special  Board  in  the  language 
of  the  Act,  is  generally  asked  for  by  either  a  union  or  a 
meeting  of  employees.  The  Minister  for  Labour,  to  whom 
such  a  request  is  directed,  makes  inquiries  concerning 
conditions  in  the  trade  in  question.  Employers,  if  in 
favor  of  the  creation  of  a  Board,  claim  the  existence  of 
"unfair  competition."  Employees,  who  more  Irequently 
ask  for  a  Board,  usually  speak  of  "low  wages  and  the 
employment  of  excessive  juvenile  labor."  The  request 
for  a  Board  does  not  necessarily  arise  from  a  strike,  or  any 
particular  instance  of  industrial  trouble.  If  the  Minister 
for  Labour  believes  that  a  good  reason  has  been  given  for 
the  creation  of  a  Board  in  a  specified  industry,  he  moves  a 
resolution  in  Parliament  declaring  that  it  is  expedient  to 
appoint  a  Special  Board.  This  resolution  must  be  passed 
by  both  Houses,  after  which  a  Board  is  nominated  and 


its  jurisdiction  stated.  This  jurisdiction  covers  the  fixing 
of  rates  of  wages,  either  by  piecework  or  time  rates  or 
both,  the  determination  of  hours  of  work  and  of  overtime, 
and  matters  of  apprenticeship. 

A  Special  Board  may  consist  of  not  less  than  four  nor 
more  than  ten  members  and  a  chairman.  One  half  of  the 
members  represent  employers,  the  other  half  employees. 
Originally  the  members  were  elected,  but  the  elaborate 
machinery  provided  for  the  purpose  was  rendered  nuga- 
tory through  the  custom  of  nomination  by  the  respective 
parties.  In  1903  the  right  of  appointment  was  vested  in 
the  Minister  for  Labour.  In  practice,  he  consults  the 
parties  interested;  objections  may  be  made  to  his  nomina- 
tions by  at  least  one-fifth  of  the  employers  or  one-fifth  of 
the  employees.  In  case  of  objection,  an  election  must  be 
held;  this  provision  does  not  apply  in  the  furniture  trade, 
which  is  dominated  by  Chinese  labor.  The  members  of 
the  Board,  who  are  appointed  for  two  years,  must  elect  a 
chairman  from  outside  their  own  ranks.  If  they  fail  to 
do  so,  one  is  appointed.  In  general,  a  person  uncon- 
nected with  the  industry  is  elected,  or,  occasionally, 
appointed. 

On  its  appointment  the  Board  begins  work.  Its 
administration  is  devised  so  as  to  disturb  industry  to  the 
least  extent.  Its  meetings  are  generally  held  in  the  late 
afternoons  and  evenings.  The  whole  procedure  is  one  of 
consultation  and  conference.  The  chairman's  main 
function  is  to  guide  and  direct  the  deliberations  so  as  to 
bring  them  to  a  final  agreement.  Many  chairmen  seek 
to  secure  a  majority  vote  without  the  use  of  their  own 
deciding  vote,  but  in  most  matters  affecting  wages  the 
chairman  is  compelled  to  be  an  arbitrator.  When  a 
determination  is  arrived  at,  it  is  forwarded  to  the  Minister 
for  Labour,  who  has  the  power,  if  he  deems  fit,  to  suspend 
the  proclamation  of  the  determination  and  to  refer  it 
back  to  the  Board.  On  its  publication  in  the  Government 
Gazette,  it  has  the  force  of  law,  and  is  administered  by  the 
officers  of  the  Department  of  Factories  and  Shops. 

Objection  may  be  raised  to  an  award  by  a  majority  of 
the  representatives  of  either  side  on  the  Board,  by  any 
employer  employing  not  less  than  25%  of  the  employees 
affected,  or  by  25%  of  the  employees  themselves.  The 
Minister  also  may  appeal.  He  does  so  when  advised  by 
the  Department  of  Labour,  which  sometimes  finds  an  award 

6 


unworkable.  In  all  these  cases  the  appeal  is  taken  to  the 
Court  of  Industrial  Appeals,  which  consists  of  a  judge  of 
the  Supreme  Court,  and  two  assessors  nominated  for  the 
occasion,  one  to  represent  employers  and  one  employees. 
The  Court  may  alter  a  determination  or,  in  case  a  Board 
has  not  been  able  to  function,  make  an  award  in  its  own 
right.  The  alteration  by  the  Court  of  an  award  necessi- 
tates the  suspension  of  the  Board  in  question  till  it  has 
the  permission  of  the  Court  to  resume. 

Principles  upon  Which  Wac.es  Boards  Work 

Ostensibly  the  system  is  one  of  conciliation  pure  and 
simple.  But  the  very  constitution  of  the  Board  introduces 
an  element  of  arbitration.  When  wages  are  under  dis- 
cussion, the  employees  ask  much  more  than  they  expect  to 
get,  the  employers  offer  less  than  they  expect  to  pay. 
Very  rarely  can  a  chairman  of  a  Board  avoid  the  necessity 
of  "splitting  the  difference,"  or  finding  some  intermediate 
figure  which  will  be  acceptable.  Practically  the  award 
under  such  conditions  is  a  decision  in  arbitration,  not  an 
agreement  in  conciliation.  The  presence  of  an  element 
contrary  to  conciliation  was  recognized  even  as  early  as 
1902.  In  that  year  an  amending  Act  was  made  to  include 
a  proviso  that  at  least  two  employees  on  a  Board  must 
vote  with  the  employers,  or  vice  versa,  for  an  award  to  be 
valid.  This  was  equivalent  to  the  substitution  of  a  seven- 
tenths  majority  for  the  casting  vote  of  the  chairman,  and 
to  a  real  award  by  majority  agreement.  But  the  proviso 
rendered  several  Boards  unworkable.  No  agreement 
could  be  reached  by  them  and  the  provision  had  to  be 
repealed  in  1903.  In  reporting  its  repeal  in  that  year, 
the  Chief  Inspector  of  Factories  stated  that  "  the  principle 
of  compulsory  arbitration^  which  had  been  abolished  so 
far  as  several  Boards  were  concerned  by  the  substitution 
of  seven-tenths  majorities,"  had  been  restored}  Though 
this  is  probably  an  overstatement  of  the  case,  it  reveals 
the  tendency  to  arbitration  inherent  in  the  chairman's 
position. 

The  Judge  of  the  Court  of  Industrial  Appeals  is  even 
more  an  arbitrator.  His  judgments  are  decisions  which, 
as  shown  above,  in  certain  cases  entirely  supersede  the 
activities  of  the  Wages  Boards.  Nor  is  his  position  one 
of  arbitrator  merely  in  form.     Decisions  like  those  given 

'Not  italicized  in  the  orisjinal. 


in  the  cases  of  the  Sewer  Laborers  and  the  Quarrymen  in 
the  last  quarter  of  1916/  in  which  the  judge  on  appeal 
altered  the  work-week  of  44  hours  agreed  upon  in  the 
award  to  one  of  48  hours,  show  a  departure  from  the 
pure  principle  of  conciliation,  and  the  practical  applica- 
tion of  social  principles  similar  to  those  which  regulate 
the  arbitration  system  of  the  Commonwealth  and  the 
state  of  New  South  Wales. 

No  consistent  or  scientific  principle  for  the  fixing  of 
wages  has  been  formulated  in  Victoria.  In  the  beginning 
the  Boards  had  to  combat  sweating,  consequently  they 
tended  to  fix  a  wage  that  seemed  to  them  to  be  fair.  But 
no  standard  or  criterion  of  the  fairness  of  a  wage  was 
available.  Employers  could  state  the  average  wage  paid 
in  the  trade.  Employees  could  assert  that  this  wage  was 
too  low  and  insufficient  for  the  sustenance  of  themselves 
and  families.  But  no  evidence  was  offered.  Hence,  the 
chairman,  on  whom  the  final  decision  rested,  could  do 
nothing  but  arbitrate.  Recognition  of  this  principle  on 
the  part  of  the  trade  unions  was  seen  in  their  request  to 
the  Premier  of  Victoria  in  1902,  that  he  should  pass  an 
industrial  arbitration  law,  explaining  that  they  preferred 
arbitration  to  the  Wages  Board  system.-  The  Premier, 
who  rejected  the  principle  of  arbitration,  inserted  in  the 
amending  Act  of  1902  the  direction  that  the  wage  fixed 
by  a  Board  must  be  that  paid  by  "  reputable  employers  to 
employees  of  average  capacity."  This  principle,  however, 
proved  unworkable.  "Reputable"  employers  were  found 
to  be  paying  wages  which  the  employees  on  the  Boards 
refused  to  accept,  and  the  clause  had  eventually  to  be 
repealed.  The  same  Act  provided  a  principle  for  the 
guidance  of  the  Court  of  Industrial  Appeals: 

Such  Court  shall  consider  whether  the  determination  ap- 
pealed against  has  had  or  may  have  the  effect  of  prejudicing 
the  progress,  maintenance  of,  or  scope  of  employment  in  the 
trade  or  industry  affected  by  any  such  price  or  rate,  and  if  of 
opinion  that  it  has  had  or  may  have  such  effect,  the  Court  shall 
make  such  alterations  as  in  its  opinion  may  be  necessary  to 
remove  or  prevent  such  effect  and  at  the  same  time  to  secure  a 
living  wage  to  the  employees  in  such  trade  or  industry  who  are 
affected  by  such  determination.'' 

'  Commonwealth  Labour  BuUeliii,  No.  17,  pp.  45,  46;  No.  18,  p.  142. 
^  W.    P.    Reeves:     "State    Experiments    in    Australia    and    New    Zealand," 
Vol.  II,  p.  174. 

'  Factories  and  Shops  Act  of  1903,  Sect.  16. 

8 


This  legislative  direction  sanctions  the  principle  of  the 
living  wage  determined  in  the  light  of  the  condition  of 
industry.  Appeals  to  the  Court  have  been  so  few  that 
little  scope  has  been  given  to  this  principle,  which  is  still 
in  force.  In  the  case  of  the  Boards,  an  amending  Act  of 
1910  directed  them  to  take  into  account  certain  general 
facts  rather  than  principles  in  fixing  wage  rates.  These 
are  the  nature  of  the  work,  the  mode  in  which  it  is  done, 
the  age  and  sex  of  the  workers,  the  locality,  the  hour  of 
the  day  or  night  when  the  work  is  done,  its  casual  nature, 
and  any  recognized  custom  of  carrying  it  out.  In  short, 
the  fixing  of  wages  remains  subject  in  principle  to  the 
general  procedure  of  bargaining  between  organized  bodies 
seeking  a  peaceful  and  mutually  satisfactory  agreement. 
The  fundamental  principle  of  conciliation  has,  therefore, 
been  preserved. 

General  Results 

Those  who  favor  the  Victorian  system  advance  certain 
results  that  it  is  considered  to  have  achieved.  These  may 
be  stated  thus: 

(1)  Strikes  are  infrequent  where  wages  and  hours  are  fixed 
by  Wages  Boards,  ant!  there  are  few  appeals  from  their 
decisions.' 

(2)  It  has  "raised  wages  in  all  occupations." 

(3)  It  has  "abolished  sweating." 

(4)  It  has  "made  the  surroundings  of  the  worker  in  factory 
and  otherwise  healthier,  safer,  more  moral  and  generally 
better  than  before."  ^ 

Statistical  data  on  the  relation  of  the  system  to  indus- 
trial peace  are  difficult  to  secure.  The  system  covers  about 
150,000  workers,  whereas  at  least  200,000  workers  are  not 
included.  The  Chief  Inspector  of  Factories  is  concerned 
mainly  with  the  former,  but  does  not  tabulate  the  disputes 
which  occur  in  connection  with  the  administration  of  the 
Wages  Boards  or  which  are  referred  to  the  Boards.  The  Vic- 

'  Cf.  M.  B.  Hammond:  "Minimum  W.age  in  Great  Britain  and  Australia." 
Annals  of  the  American  Acaiicmy  of  Political  and  Social  Science,  Vol.  XLVIII, 
pp.  31-36. 

-  The  last  three  claims  are  to  be  found  in  a  Report  on  Some  of  the  Effects  of 
Labour  Legislation,  1916,  prepared  by  H.  M.  Murphy,  Secretary  to  the  Labour 
Department,  Melbourne,  Victoria. 

9 


torlan  Statistician  presents  no  statistics  of  industrial 
disputes.  The  Commonwealth  Statistician,  in  his  Labour 
Bulletins  and  Labour  Reports^  collects  information  con- 
cerning disputes  within  the  Commonwealth,  without 
special  reference  to  Wages  Boards.  In  consequence  of  the 
gaps  in  this  information,  much  material  that  would  be 
valuable  to  the  investigator  is  not  available. 

Yet,  despite  the  scarcity  of  statistical  data,  the  relative 
infrequency  of  strikes  in  Victoria  must  be  admitted. 
Evidence  of  this  is  to  be  found  in  the  tables  of  the  Com- 
monwealth Statistician.'  These  show  that  in  all  industries 
in  the  period  1913-1917,  the  number  of  disputes  in 
Victoria  formed  only  11.75%  of  those  in  the  whole  of 
Australia.  The  significance  of  these  figures  is  measured 
by  the  percentage  of  wage-earners.  For  1912,  the  only 
year  in  which  carefully  ascertained  figures  are  available, 
Victoria  had  34.8%  of  all  employees  in  the  manufacturing 
industries  of  Australia,  a  proportion  which  has  not  been 
seriously  altered.  The  contrast  between  the  number  of 
wage-earners  and  the  number  of  disputes  is  emphasized 
by  a  comparison  with  New  South  Wales.  In  the  year 
1912,  the  latter  state  had  36.5%  of  the  employees  in- 
vestigated, but  in  the  years  1913-1917  it  had  68.6%  of 
the  total  number  of  disputes. 

Within  the  jurisdiction  of  the  Wages  Boards  strikes 
are  even  less  frequent.  The  Wages  Boards  work  smoothly. 
In  case  of  a  strike  the  Minister  has  the  right  to  suspend  a 
determination,  but  has  rarely  been  called  upon  to  exercise 
this  right.  In  October,  1913,  the  Builders'  Laborers' 
determination  was  suspended  for  six  months,  and  in  July, 
1914,  the  Bread  Board  determination  was  suspended  for 
one  month.-  Since  suspensions  are  subject  to  the  dis- 
cretion of  the  Minister,  the  number  of  suspensions  does 
not  measure  the  number  of  strikes.  But  it  is  certain  that 
the  number  of  strikes  in  trades  under  the  Wages  Boards 
is  small. 

The  relative  infrequency  of  appeals  is  evidence  that 
the  agreements  reached  are  generally  satisfactory.  It  is 
noteworthy  that  almost  all  appeals  have  been  brought  by 
employers  or  by  the  Minister  for  Labour.  The  reversal  of 
an  award  in  the  baking  trade  in  1907  led  to  a  strike,  when 

1  See  Table  3,  p.  28. 

2  Report  of  the  Victorian  Chief  Inspector  of  Factories  on  Anti-Strike  Legisla- 
tion, p.  11. 

10 


the  employers  yielded.  The  decision  of  the  Court  in  the 
coal  trade  in  1913  led  to  a  four  weeks'  strike  and  to  the 
granting  of  a  new  Board  for  the  trade  before  the  men 
returned  to  work.  In  the  second  quarter  of  1914,  450 
stonecutters  and  masons  struck.  The  employers  had 
objected  to  the  wage  rates  fixed  by  the  Board,  and 
appealed  to  the  Court  of  Industrial  Appeals,  which  fixed 
rates  unacceptable  to  the  employees.  An  agreement  was 
arrived  at  after  six  or  seven  weeks. ^ 

Two  other  disputes  afford  instances  of  attempted  re- 
duction in  wages  or  increase  in  the  work-week.  In  the 
first  quarter  of  1913,  the  Slaters'  and  Tilers'  Board  fixed 
a  rate  of  12  shillings  for  men  who  had  previously  received 
13  shillings  and  were  asking  for  14  shillings  per  day.  The 
men  struck.  Their  determination  was  not  suspended,  but, 
instead,  they  were  given  their  previous  rate  of  13  shillings 
a  day  for  a  44-hour  week.-  In  the  last  quarter  of  1916, 
sewer  laborers  and  quarrymen  separately  refused  to  work 
under  awards  of  the  Industrial  Court  of  Appeals  by  which 
the  work-week  was  increased  from  44  to  48  hours.  The 
former  body  of  workmen  resumed  work  on  a  44-hour  week. 
In  the  case  of  the  quarrymen,  the  employees  agreed  to 
accept  the  award  of  the  Court  after  a  conference  between 
representatives  of  employers  and  employees.^ 

Though  the  Wages  Boards  have  not  entirely  done  away 
with  industrial  conflicts  within  their  jurisdiction,  they 
have  been  accompanied  by  a  relative  freedom  from 
strikes.  No  definite  measure  of  the  extent  to  which  the 
Boards  have  contributed  to  this  result  is  obtainable. 
Much  of  it  is  due  to  the  conciliatory  form  of  the  system. 
But  some  of  it  is  due  to  certain  inherent  advantages 
possessed  by  Victoria  in  the  absence  of  a  strongly  or- 
ganized, militant  unionism  and  of  a  strong  labor  party  in 
politics.  Of  the  favorable  atmosphere  thus  created,  the 
Wages  Boards  have  taken  full  advantage. 

In  the  matter  of  wages,  similar  statistical  difficulties 
are  encountered.  Tables  of  average  wages  are  invariably 
offered  in  the  reports  of  the  Victorian  Chief  Inspector  of 
Factories  as  measures  of  the  results  achieved.  Of  recent 
years,  these  tables  have  been  carefully  weighted  and  are 
statistically  valid.     But  tables  of  the  average  wage  in  the 

^Commonwealth  Labour  Bulletin,  No.  6,  p.   111. 
-Commonwealth  Labour  Bulletin,  No.  1,  p.  40. 
^Commonwealth  labour  Bulletin,  No.   17,  p.  46;  No.   IS,  p.  142. 

11 


years  before  the  Boards  dealt  with  the  respective  trades 
are  not  so  weighted.  In  consequence,  wherever  low-priced 
juvenile  labor  is  employed  or  apprentices  form  a  significant 
percentage  of  the  labor  force,  the  unweighted  average 
wage  is  deflected  towards  the  lower  levels.  A  comparison 
between  this  average  wage  and  the  weighted  mean  calcu- 
lated for  certain  trades  under  the  Wages  Boards  therefore 
exaggerates  the  increase  which  has  taken  place  in  the 
period. 

That  wages  have  risen  in  Victoria  as  in  other  states 
cannot  be  disputed.  But  no  careful  student  of  the  situa- 
tion can  attribute  this  increase  entirely  to  Wages  Boards 
or  other  forms  of  arbitration.  Probably  the  most  accurate 
statement  of  their  influence  would  be  that  they  have 
facilitated  the  operation  of  those  economic  factors  which 
would  eventually  have  led  to  a  general  increase  of  wages. 

Australian  statistics  demonstrate  that  Wages  Boards, 
in  common  with  other  wage-fixing  machinery,  for  a  time 
gave  an  advantage  to  the  worker  by  increasing  wages 
faster  than  prices  rose,  but  not  since  about  1911.^  It  is 
sometimes  asserted  that  Wages  Boards  by  increasing 
wages  increase  prices.  Undoubtedly,  in  most  cases  wage 
increases  are  passed  on  to  the  consumer.  But  careful  in- 
vestigators of  conditions  in  Australia  and  New  Zealand 
alike  are  not  convinced  that  increased  wages  alone  have 
been   a   considerable   factor  in   increasing   prices.^ 

In  comparison  with  the  rest  of  the  Commonwealth, 
Victoria  has  slightly  lower  wages  for  males,  but  slightly 
higher  wages  for  females.^  The  deviations  in  either  case 
are  so  small  as  not  to  be  directly  attributable  to  Wages 
Boards,  but  rather  to  the  nature  and  distribution  of  the 
industries  of  the  state.  The  same  criticism  applies  to  the 
contention  that  wages  are  higher  in  Wages  Board  trades 
than  in  those  not  regulated  by  Wages  Boards.  In  general, 
the  Board  trades  are  larger  and  relatively  more  important, 
including  also  a  larger  proportion  of  the  skilled  trades.  On 
the  matter  of  old  and  slow  workers,  the  system  has 
achieved  finality.  Permits  are  issued  for  them  to  accept 
wages  below  the  minimum  wages. 

^  Cf.  Commonwealth  Labour  Report,  No.  7,  p.  436. 

^  Cf.  the  evidence  in  Clarence  H.  Northcott:    "Australian  Social  Develop^ 
ment,"  pp.  226-229. 

^  Cf.  Commonwealth  Labour  Report,  No.  7,  pp.  418-426. 

12 


In  Victoria  and  in  Australia  generally  there  has  been  no 
tendency  for  the  minimum  wage  to  become  the  maximum. 
The  fixing  of  a  minimum  has  lifted  the  unskilled  worker 
in  the  wage  scale  and  thus  led  to  a  relative  undervaluation 
of  skill.'  But  it  has  not  destroyed  the  ability  of  the  skilled 
worker  to  obtain  a  higher  wage.  Thus  in  November,  1912, 
when  the  question  of  wages  in  the  manufacturing  indus- 
tries of  Australia  was  investigated  by  the  Common- 
wealth Statistician,  the  average  wage  for  males  in  Victoria 
was  46s.  9d.,  while  the  minimum  wage  for  unskilled  labor 
was  42  shillings  per  week.  At  the  same  time,  50.7  per  cent 
of  the  male  employees  of  that  state  were  earning  over  50 
shillings  per  week,  and  32.7  per  cent  were  being  paid  what 
the  Commonwealth  Statistician  considered  the  wages  of 
highly  skilled  artisans. - 

The  abolition  of  sweating  is  undisputed,  but  any  better 
conditions  which  have  followed  the  introduction  of  the 
Wages  Board  system  seem  to  be  more  correctly  assignable 
to  other  provisions  of  the  Factories  and  Shops  Act,  or  to 
the  effect  of  higher  wages,  than  to  the  system  itself. 


Summary 

The  Wages  Boards  of  Victoria  represent  the  earliest  and 
one  of  the  most  successful  forms  of  conciliation  to  be 
found  in  industrial  history.  Inaugurated  to  suppress 
sweating,  their  success  in  that  direction  has  led  them  on 
to  the  regulation  of  wages  generally.  Simple,  direct,  and 
inexpensive,  alike  in  constitution  and  in  administration, 
they  provide  the  essential  requisites  of  conciliation. 
They  have  produced  a  general  sentiment  in  Australia 
in  favor  of  their  superiority  over  the  method  ot  in- 
dividual contract.  Employers,  who,  even  in  Victoria, 
have  no  great  liking  for  state  interference,  yet  prefer  the 
Wages  Boards  system  to  that  of  arbitration.  Though  this 
preference  may  be  based  on  local  prejudice,  the  Wages 
Boards  system  is  more  limited  in  its  interference  with  the 
employer.  Compulsory  arbitration  has  carried  interfer- 
ence in  industry  further,  and  thus  has  given  organized 
labor  a  more  powerful  weapon  to  use  in  dealing  with  the 
employer.  Although  the  system  does  not  give  employees 
that  support  for  trade  unionism  upon  which  arbitration  is 

'  See  C.  H.  Northcott  as  cited,  pp.  221-224. 
-  Commonwealth  Labour  Report,  No.  3,  pp.  8-11. 

13 


based,  yet  they  show  no  concerted  effort  to  alter  it.  Judged 
by  itself,  by  what  it  has  done  in  the  direction  of  securing  fair 
wages  and  furthering  industrial  peace,  it  must  be  ranked 
as  a  significant  and  measurably  successful  attempt  to 
regulate  some  of  the  more  important  problems  in  the  re- 
lations of  employer  and  employee. 

But  too  much  must  not  be  claimed  for  it.  It  is  not  a 
pure  instance  of  conciliation.  Nor  is  it  in  any  sense 
tantamount  to  voluntary  arbitration.  A  large  measure  of 
the  methods  and  purposes  of  compulsory  arbitration  has 
entered  into  it.  However,  although  the  procedure  of  a 
conference  gives  representatives  of  each  party  an  under- 
standing of  the  problems  and  difficulties  of  the  other, 
neither  employers  nor  employees  feel  themselves  bound 
always  to  accept  an  award.  Employers  appeal  from 
determinations  and  employees  go  on  strike. 

Nevertheless,  from  many  standpoints,  this  system  has 
proved  effective  in  dealing  with  industrial  difficulties  in 
Victoria.  The  Boards  are  in  continuous  existence  and  can 
readily  give  their  attention  to  any  subject  which  may  lead 
to  industrial  trouble.  They  are  a  safety  valve  whereby 
grievances  may  be  expressed  and  remedied.  They 
furnish  definite  machinery  to  maintain  personal  relations 
between  employers  and  employees.  They  become  centers 
of  common  information  and  discussion  concerning  in- 
dustry. In  this  way  they  convince  employees  of  their 
dependence  upon  the  prosperity  of  the  industry  in  which 
they  are  engaged.  Thus  they  inspire  greater  mutual 
confidence  and  tend  to  prevent  or  remove  the  causes  of 
industrial  conflict. 


14 


Ill 

THE  ARBITRATION  SYSTEM  OF 
NEW  SOUTH  WALES 

Contrast  with  Victoria 

The  state  of  New  South  Wales,  the  largest  in  the 
Australian  Commonwealth,  commercially,  industrially, 
and  in  respect  to  population,  presents  a  system  of  wage- 
fixing  very  different  from  that  of  Victoria.  From  1901 
onward  it  has  endorsed  compulsory  arbitration,  from  the 
principle  of  which  it  has  never  departed.  But  step  by 
step  methods  of  conciliation  have  been  added  to  the 
original  machinery.  Wages  Boards,  though  not  on  the 
Victorian  model  nor  comparable  in  scope  and  method, 
were  added  in  1908.  In  1912  the  office  of  Industrial  Com- 
missioner was  created  to  allow  of  the  calling  together  in 
conference  of  parties  between  whom  a  dispute  had  arisen. 
At  the  same  time,  Conciliation  Committees  were  author- 
ized for  major  occupations  or  callings  employing  more 
than  500  men.  In  the  recent  amending  Act  of  1918  more 
extended  provisions  for  the  principle  of  conciliation  were 
adopted.  Thus  the  trend  of  the  administration  of  com- 
pulsory arbitration  in  New  South  Wales  has  brought  this 
state  nearer,  in  principle  at  least,  to  the  Victorian  system. 

Yet  significant  differences  exist  between  the  two  states, 
affecting  the  nature  and  results  of  their  industrial  laws  and 
the  mode  of  their  administration.  Neglect  of  these 
differences  leads  students  of  social  affairs  to  institute 
comparisons  which  are  invalid,  and  vitiates  conclusions 
concerning  the  two  systems. 

New  South  Wales  differs  from  Victoria,  first,  in  the 
number  and  composition  of  its  working  population.  The 
Commonwealth  Statistician  estimates  that  in  the  years 
1913  and  1914  the  average  number  of  persons  in  receipt  of 
wages  or  salary  in  New  South  Wales  was  453,600;  in 
Victoria,  346,800.'     The  factory  population  of  the  former 

^  Commonwealth  Labour  Report,  No.  6,  p.  108. 

15 


state  in  1913  '  was  117,400,  and  of  Victoria  118,700.  The 
sex  distribution  of  this  population  is  also  significant  as 
affecting  its  organization  and  the  use  of  its  economic 
power  in  strikes.  Figures  are  not  available  for  a  sex 
distribution  of  the  total  working  population,  but  of  those 
employed  in  factories  in  1913,  the  ratio  of  females  to 
males  in  New  South  Wales  was  100  to  339;  in  the  latter 
state,  100  to  207,  a  distinctly  greater  proportion  of 
females."  When  the  larger  agricultural,  mining,  and 
pastoral  industries  of  New  South  Wales  are  considered, 
the  preponderance  of  males  in  its  working  population  is 
demonstrated. 

The  nature  of  trades  and  occupations  is  also  a  dif- 
ferentiating factor  in  industrial  unrest.  New  South  Wales 
has  a  relatively  larger  proportion  of  males  engaged  as 
primary  producers,  and  in  transport  and  industry.  A 
highly  important  fact  is  that  it  has  nearly  three  times  as 
many  miners  as  Victoria.^  These  are  distributed  in  two 
large  industrial  centers  where  they  are  the  dominating 
element.  Though  only  8.6  per  cent  of  the  industrial 
population  of  the  state,  they  are  a  serious  factor  in  pro- 
ducing strikes  and  smaller  disturbances  of  production. 

Further,  unionism  in  New  South  Wales  is  stronger  in 
numbers,  better  organized  and  more  aggressive.  At  the 
end  of  the  year  1914  the  male  members  of  unions  in  New 
South  Wales  included  60.7  per  cent  of  the  estimated 
total  number  of  male  employees  of  that  state.  The  cor- 
responding percentage  in  Victoria  was  50.  On  the  other 
hand,  the  female  members  of  trade  unions  in  Victoria  were 
estimated  at  12.7  per  cent  of  the  total  number  of  females 
employed,  whereas  in  New  South  Wales  the  percentage 
was  10.9.'' 

Unionism  in  the  latter  state  furnishes  the  basis  for  arbi- 
tration. The  unions  have  supported  the  compulsory 
principle  from  the  beginning.  The  dev^elopment  of  arbi- 
tration in  this  state  has  run  side  by  side  with  that  of  a 
political  Labour  party  which  has  practically,  either  as  a 
party  or  in  the  person  of  some  of  its  earlier  leaders,  con- 
trolled the  administration  of  the  arbitration  machinery 

^  This  year  is  selected  because  the  war  has  affected  the  total  working  popula- 
tion and  its  sex  and  occupational  distribution. 
^  Commonwealth  Year  Book,  No.  10,  pp.  471,  472. 
^  Commonwealth  Year  Book,  No.  8,  p.  437. 
*  Commonwealth  Labour  Report,  No.  6,  p.  11. 

16 


since  1910.  In  Victoria  the  Labour  party  has  never  been 
strong,  and  has  held  office  for  only  thirteen  days.  These 
differences  in  the  political  and  industrial  history  of  the 
states  are  reflected  in  their  systems  of  arbitration. 


Development  of  the  Svstem 

Early  efforts  at  wage-fixing  in  New  South  Wales  were 
in  the  direction  of  mediation  and  conciliation,  but  all 
proved  futile.  A  disastrous  and  widespread  maritime 
strike  in  1890,  which  affected  New  Zealand  as  well,  led  to 
the  first  real  effort  to  avert  industrial  disputes.  This  strike 
followed  an  attack  by  employers  upon  the  principle  of 
collective  bargaining.  Its  failure  was  the  motive  for  the 
rise  of  an  organized  political  Labour  party,  and  led  to  an 
effort  to  investigate  and  deal  with  the  causes  of  industrial 
disputes.  In  1892  a  Trades  Disputes  Conciliation  and 
Arbitration  Act  was  passed,  to  operate  for  four  years. 
By  it,  Councils  of  Conciliation  were  appointed,  with 
adequate  machinery.  But  the  Act  did  not  compel  either 
party  to  submit  a  dispute  to  the  Court  or  obey  an  award. 
There  was  no  public  opinion  in  favor  of  its  utilization. 
The  employers,  fresh  from  their  recent  victory  in  the 
strike  of  1890,  were  in  general  opposed  to  collective  bar- 
gaining, and  would  not  appear  before  the  Councils.  Con- 
sequently, after  less  than  three  years,  the  administration 
of  the  Act  lapsed.  An  amendment  made  in  1899  proved 
ineffective. 

Industrial  Arbitration  Act  of  igoi.  The  failure  of 
voluntary  conciliation  led  to  the  formulation  of  an  attempt 
at  arbitration,  the  Industrial  Arbitration  Act  of  1901. 
This  was  modeled  on  the  New  Zealand  Industrial  Con- 
ciliation and  Arbitration  Act  of  1894,  which  provided  for 
local  Boards  of  Conciliation  and  a  Court  of  Arbitration. 
The  Boards  of  Conciliation  consisted  of  four  or  six  persons 
elected  by  unions  of  employers  and  workers  respectively, 
and  an  outside  chairman  chosen  by  the  elected  members. 
If  a  decision  was  reached  before  these  Boards,  it  was 
legally  binding;  otherwise  it  was  merely  a  friendly  recom- 
mendation and  could  not  be  enforced. 

These  Conciliation  Councils  having  proved  inefiective 
by  1901,  the  New  South  Wales  Act  omitted  them,  and 
thus  became  purely  compulsory.  Its  two  keynotes  were 
organization  and  compulsion.     It  made  strikes  and  lock- 

17 


outs  misdemeanors,  punishable  with  heavy  penalties, 
except  when  a  reasonable  notice  had  been  given  to  enable 
the  Arbitration  Court  to  deal  with  the  matter.  It  en- 
couraged trade  unionism  and  collective  bargaining  by 
providing  that  only  organized  bodies  of  employers  or 
employees  could  approach  the  Court.  It  sought  to 
facilitate  the  process  of  collective  bargaining  by  allowing 
industrial  unions  to  come  to  an  agreement  in  writing,  and 
by  providing  that  this  agreement  should  be  registered  as 
an  award.  Further,  in  contradistinction  to  the  New 
Zealand  model,  the  principle  of  the  "common  rule"  was 
introduced,  whereby  such  an  agreement  could  be  made 
applicable  to  a  whole  industry. 

This  Act,  which  its  framer,  the  late  Mr.  B.  R.  Wise, 
K.  C,  had  regarded  as  a  "crucial  experiment  which 
should  enable  a  decisive  answer  to  be  given  as  to  the 
practicability  and  benefits  of  the  legal  method  of  settling 
industrial  disputes,"  failed  to  work  smoothly.  Legal 
technicalities  hindered  its  administration,  and  an  un- 
sympathetic Parliament  refused  the  amendments  neces- 
sary to  remedy  the  defects.  The  common  rule  clause,  the 
most  useful  part  of  the  measure,  was  emasculated  by 
judicial  decisions  on  appeal.  More  work  was  conse- 
quently thrown  upon  the  Court,  which  became  tre- 
mendously congested.  During  the  first  year  of  its  opera- 
tion, out  of  81  cases  listed  for  trial,  only  11  were  disposed 
of.  By  the  end  of  the  year  1905,  146  industrial  disputes 
had  been  submitted  to  it,  54  had  been  heard  and  deter- 
mined, 17  settled  or  withdrawn,  while  75  awaited  hearing. 
The  long  delays  caused  by  the  congestion  of  the  Court 
led  to  great  industrial  unrest.  Unions,  which  had  given 
up  their  power  to  strike  in  favor  of  arbitration,  withdrew 
from  the  Court.  The  Newcastle  miners  had  waited  four 
years  for  their  case  to  be  heard,  and  were  prevented  from 
striking  only  by  the  creation  of  a  special  tribunal.  This 
industrial  unrest  was  a  consequence  of  the  administration 
of  the  Act,  not  a  measure  of  the  value  of  the  principle  of 
arbitration.  The  congestion  of  the  Court,  the  unsympa- 
thetic administration,  and  the  threat  of  the  replacement 
of  compulsory  arbitration  by  a  system  of  Wages  Boards, 
were  the  prime  causes  of  the  troubles  that  threatened  in 
Australian  industry  in  1907  and  1908.  Nor  were  the 
deficiencies  of  the  Act  and  of  its  machinery  related  to  the 
principle  of  arbitration.  The  Act  was  a  piece  of  experi- 
mental legislation  and  therefore  in  need  of  amendments 

18 


that  would  fit  it  to  function  effectively.  Yet  it  ran  its 
appointed  course  till  June,  1908,  without  any  elective 
amendment,  whereas  the  original  New  Zealand  Act  was 
amended  seven  times  in  the  first  five  \ears  of  its  existence. 

Industrial  Disputes  Act  of  jgoS.  So  strong  was  the 
feeling  in  favor  of  compulsory  arbitration  that  the  new 
Act,  the  Industrial  Disputes  Act  of  1908,  did  not  alter 
the  principle.  It  added,  however,  a  system  of  Wages 
Boards  and  sought  to  prohibit  strikes  and  lockouts  by 
re-enacting  the  penalties  of  the  earlier  Act  and,  after  an 
amending  Act  in  1909,  applying  them  with  greater  rigor. 
The  Act  was  received  with  much  disfavor  by  the  unionists, 
whose  numbers  and  strength  had  been  increased  by  the 
Act  of  1901.  One  chief  reason  for  this  disfavor  was  the 
proposal  to  allow  a  specified  number  of  persons,  even  if 
unorganized,  to  initiate  arbitration  proceedings.  Its 
rigorous  administration,  furthermore,  led  to  serious  and 
far-reaching  strikes,  and  to  the  placing  of  a  Labor  party 
in  political  power  in  1910. 

Industrial  Arbitration  Act  of  igi2.  The  Minister  for 
Labour  and  Industry  in  this  administration,  Mr.  George  S. 
Beeby,  M.L.A.,  brought  forward  the  Industrial  Arbitra- 
tion Act  of  1912.  This  Act  retained  the  Wages  Boards 
of  the  preceding  Act,  but  sought  to  avoid  their  two  chief 
defects,  their  multiplicity  and  the  overlapping  of  awards. 
Industries  were  grouped  and  defined  by  schedules.  Wages 
Boards  for  callings  or  occupations  within  each  group  were 
all  placed  under  one  chairman,  who  was  thus  able  to 
co-ordinate  the  awards.  The  Act  yielded  to  both  judicial 
and  public  opinion  in  removing  the  penalty  of  imprison- 
ment for  striking,  since  it  sought  to  repress  rather  than 
to  prohibit  strikes.  A  monetary  fine  still  remained  as 
penalty  for  striking,  individuals  being  subject  to  a  fine 
with  a  maximum  of  £50  ($243.50).  A  trade  union  which 
struck  might  have  its  registration  canceled  and  the  Court 
might  grant  a  writ  of  injunction  against  any  one  con- 
tinuing to  instigate  or  aid  a  strike,  the  maximum  penalty 
being  imprisonment  for  six  months. 

Yet  the  outstanding  feature  of  the  Act  was  the  ma- 
chinery provided  for  conciliation,  in  the  appointment  of 
an  Industrial  Commissioner  and  the  provision  for  Concilia- 
tion Committees.  Experience  with  this  Act  showed, 
however,  that  the  altered  administration  of  Wages  Boards 
did  not  mitigate  delay  in  hearing  and  determining  awards, 

19 


nor  prevent  their  overlapping.  Hence,  in  1916  the  Act  was 
amended  so  as  to  provide  for  additional  judges  to  sit  in 
the  Court  of  Industrial  Arbitration,  in  order  to  divert 
some  of  the  work  from  the  Wages  Boards. 

The  war  introduced  political  elements  that  were  re- 
flected in  the  state's  industrial  history.  The  question 
of  conscription  disrupted  the  Labour  party  and  threw  it 
out  of  office.  Its  experienced  leaders  were  expelled. 
Extremists  gained  control,  both  of  the  unions  and  the 
Labour  political  organization,  and  in  August,  1917,  pre- 
cipitated a  trial  of  strength  with  organized  government. 
The  employees  of  the  state-owned  railways  of  New  South 
Wales  struck  against  a  method  adopted  by  the  Railway 
Commissioners  to  obtain  a  better  accounting  system  in 
their  workshops.  The  unions  issued  an  ultimatum  de- 
manding the  withdrawal  of  the  method.  As  all  the 
employees  were  servants  of  the  state,  the  Government  of 
New  South  Wales,  like  the  Government  of  France  in  1910, 
joined  issue  on  the  question  of  control  of  public  services. 
A  sympathetic  strike  involved  ultimately  76,000  persons, 
with  a  loss  in  wages  estimated  at  £1,700,000  (approxi- 
mately 18,500,000).  As  the  matter  was  one  of  principle, 
no  measures  of  conciliation  were  attempted  till  the  strikers 
seemed  beaten.  After  ten  weeks  matters  were  adjusted. 
The  penal  provisions  of  the  Act  were  set  in  motion  against 
striking  unions.  The  result  was  such  altered  conditions 
of  industrial  organization  as  to  demand  important 
amendments  to  the  Act. 

Amending  Act  of  igi8.  In  February,  1918,  Mr.  G.  S. 
Beeby,  author  of  the  Act  of  1912,  introduced  an  amending 
bill  which,  after  many  alterations  in  the  legislative  process, 
became  law  on  March  22,  1918.  This  measure  is  the  most 
significant  worked  out  in  the  Australian  laboratory  of 
social  experimentation.  Its  chief  provisions  relate  to  the 
distinction  made  between  legal  and  illegal  strikes,  the 
conditions  under  which  strikes  may  be  legal,  more  ex- 
tended machinery  for  conciliation,  and  provisions  for  a 
more  scientific  calculation  of  the  minimum  and  living 
wage. 

This  historical  summary  shows  that  without  any  altera- 
tion in  principle,  arbitration  in  New  South  Wales  has  in- 
creased in  complexity  and  extended  in  scope.  The  process 
through  which  it  has  passed  has  been  one  of  experiment 

20 


and  amendment.  From  the  very  beginning  it  has  had 
the  definite  aim  of  fixing  a  Hving  wage  and  thereby 
minimizing  industrial  conflict.  But  in  the  process  there 
has  been  a  change  of  attitude  toward  strikes.  It  must  be 
remembered  that  arbitration  is  an  alternative  to  the 
strike  as  a  method  of  industrial  agreement.  A  system  of 
arbitration,  therefore,  calls  for  measures  to  reduce  or 
prevent  strikes.  From  1901  to  1910  the  administrative 
policy  was  definitely  to  penalize  striking  by  characterizing 
it  as  a  misdemeanor,  punishable  with  fine  and  imprison- 
ment. From  1910  onward  a  large  measure  of  concilia- 
tion was  added  to  the  arbitration  machinery,  and  striking 
was  made  "an  extravagant  proceeding,"  which  might 
involve  the  offender  in  penalties  and  the  attachment  of 
his  wages.  In  1918  a  more  definite  and  extended  system 
of  conciliation  was  adopted,  to  minimize  the  number  of 
trivial  and  resultless  strikes,  which  involved  little  that 
could  be  subjected  to  arbitration.  At  the  same  time  a 
distinction  was  made  between  legal  and  illegal  strikes. 
Strikes  are  declared  illegal  in  any  industry  under  Govern- 
ment or  municipal  control,  or  under  an  industrial  award 
or  agreement,  or  in  case  14  clear  days'  notice  had  not 
been  given  of  the  intention  to  strike.  Illegal  strikes 
are  to  be  heavily  penalized,  penalties  are  specified  against 
the  union,  the  individual  strikers,  and  any  one  encouraging 
them  by  word  or  act.  A  union  may,  however,  strike 
legally,  but  only  after  at  least  twelve  months  trial  of  an 
award;  further,  a  secret  ballot,  in  which  two-thirds  of  its 
members  take  part,  must  be  held  in  all  cases. 

The  Act  of  1918,  therefore,  while  recognizing  the  right 
to  strike  under  certain  conditions,  nevertheless  sharply 
limits  that  right  and  lays  far  greater  stress  on  the  prin- 
ciple of  arbitration. 

Administrative  Machinery 

The  arbitration  system  of  New  South  Wales  is  under 
the  direction  of  the  Minister  for  Labour  and  Industry,  as 
the  head  of  an  organized  department  of  the  civil  service. 
The  corner-stone  of  the  system  is  the  Court  of  Industrial 
Arbitration,  which  consists  (1918)  of  four  judges,  one  of 
whom  is  designated  the  President  of  the  Court.  The 
Court  has  jurisdiction  in  the  last  resort  over  the  whole 
of  the  Boards  and  over  industrial  matters  generally. 
The  Boards,  more  correctly  called  Industrial  rather  than 

21 


Wages  Boards,  are  constituted  by  the  Minister  on  the 
recommendation  of  the  Court  of  Industrial  Arbitration. 
They  consist  of  two  or  four  members,  equally  representing 
employers  and  employees,  with  a  chairman  appointed  by 
the  Minister.  From  1912  onward,  this  chairman  has 
presided  over  a  number  of  allied  Boards  in  the  one  group 
of  trades.  These  allied  Boards  thus  become  subsidiary 
arbitration  courts  dealing  with  specified  industries  or 
callings  and  subject  only  to  the  control  of  the  Court  of 
Industrial  Arbitration. 

Proceedings  begin  before  a  Board  on  application  by 
employers  or  employees  in  the  industries  or  callings  for 
which  the  Board  has  been  constituted.  In  the  case  of  the 
employees,  the  application  must  come  from  a  union 
through  its  officers,  and  only  a  union  can  appear  before 
the  Court  or  a  Board.  What  is  technically  called  a  dispute 
arises  when  a  request  comes  from  one  party  for  any 
alteration  of  existing  conditions.  The  refusal  of  this 
request,  provided  that  the  subject  is  an  "industrial 
matter,"  constitutes  a  dispute,  which  is  then  submitted 
to  the  Registrar  of  the  Court  of  Arbitration.  This  official, 
when  satisfied  of  the  jurisdiction  of  the  Court  over  the 
parties  and  the  subject,  brings  the  matter  before  the 
W^ages  Board  concerned,  which  sits  as  an  official  court. 
Both  employers  and  employees  may  be  represented  before 
the  Board  by  counsel,  the  employees  being  usually  repre- 
sented by  a  union  secretary.  Evidence  is  given  in  open 
court,  but  the  decision  is  reached  in  private  deliberation 
of  the  Board. 

In  jurisdiction  and  method  the  Boards  differ  from  those 
of  Victoria.  They  have  a  much  wider  scope.  In  so  far 
as  their  functions  include  the  fixing  of  wages,  hours,  over- 
time, and  the  number  of  apprentices,  they  are  comparable 
with  those  of  Victoria.  But  in  addition  they  may  rescind 
or  vary  any  award,  may  grant  preference  to  unionists, 
and  generally  determine  any  industrial  matter.  Their 
method  of  procedure  is  different.  They  often  take  evi- 
dence at  great  length,  and  their  fixing  of  the  minimum 
wage  is  by  a  process  of  judicial  determination  rather  than 
of  agreement  in  conference.  They  definitely  adopt  the 
principle  of  the  cost  of  living  as  an  index  of  the  living 
wage  which  they  fix.  The  chairmen  are  always  barristers, 
but  often  have  not  sufficient  prestige  and  authority  to 
check  the  lengthy  and  tedious  evidence  which  other 
members  of  the   Board  encourage.     This  is  one  of  the 

22 


reasons  which  led  in  1916,  and  later,  to  an  increase  in  the 
number  of  judges  in  the  Arbitration  Court.  It  was  felt 
that  judges  could  probably  do  their  work  more  expedi- 
tiously, and  that  the  addition  of  a  few  would  enable  the 
Court  to  take  over  a  large  share  of  the  work  of  the  Boards. 

The  Boards  issue  their  findings  as  awards  which,  while 
subject  to  appeal  to  the  Court  of  Industrial  Arbitration, 
are  generally  registered  without  appeal,  and  become 
operative  with  the  force  of  law.  The  record  of  operations 
of  Boards  shows  their  superiority  to  the  earlier  system  as 
well  as  their  activity  in  formulating  and  varying  awards. 
From  February,  1902,  to  July,  1908,  the  first  Court  of 
Industrial  Arbitration  made  89  awards.  From  the  latter 
date,  when  Wages  Boards  were  instituted,  till  April,  1912, 
213  Boards  were  in  operation  and  issued  430  awards. 
From  April,  1912,  to  June,  1916,  862  awards,  including 
368  variations,  were  made  by  the  Boards,  and  174  varia- 
tions by  order  of  the  Court  of  Industrial  Arbitration.' 

The  Act  of  1912  systematized  the  practice  of  industrial 
agreements  which  had  formed  a  part  of  the  system  o\ 
arbitration  since  1901.  These  agreements  are  registered 
and  have  the  force  of  awards,  being  binding  on  the  parties 
and  on  the  individuals.  Their  maximum  duration  is  fixed 
at  five  years.  The  number  of  agreements  filed  since  1902 
is  shown  in  the  following  table: 

TABLE     i:     INDUSTRIAL    AGREEMENTS,    NEW^    SOUTH    WALES, 
I902-I916 

(New  South  Wales  Year  Book,  1916,  p.  823) 


Year 

Agreements 
Registered 

Year 

Agreements 
Registered 

Year 

Agreements 
Registered 

1902  ) 

1903  j 
1904 
1905 
1906 

28 

IS 

6 

13 

1907 
1908 
1909 
1910 
1911 

11 
12 
28 
21 
27 

1912 
1913 
1914 
1915 
1916 

44 
30 
50 
33 
51 

The  conciliation  machinery  which  became  a  feature  of 
the  system  in  1912  was  suggested  by  the  experience  of  the 
first  ten  years  of  arbitration.  This  had  shown  that  main- 
trivial  and  wasteful  strikes  originated  in  small  disputes 
which  were  scarcely  on  the  level  of  arbitration,  and  which 
might  be  settled  quickly  if  the  machinery  for  immediate 
inquiry  were  available.     By  the  Act  of  1912  an  Industrial 

1  New  South  Wales  Year  Book,  1916,  p.  bll. 

23 


Commissioner  was  appointed,  charged  with  the  responsi- 
bihty  of  intervening  in  all  cases  where  he  was  directly  or 
indirectly  aware  of  any  actual  or  threatened  dispute.  He 
had  power,  in  such  cases,  to  summon  a  compulsory  con- 
ference of  employers  and  employees.  He  could  not, 
however,  make  an  award.  He  was  authorized  only  to 
act  as  chairman  of  a  conference,  and  to  seek  to  reach  some 
agreement  by  conciliation.  Should  occasion  demand,  he 
reported  the  matter  to  the  Minister  for  Labour,  who  referred 
it  to  the  Court  and  thus  obtained  a  speedy  inquiry. 
These  measures  were  intended  to  provide  a  simple  and 
expeditious  procedure  for  smaller  disputes  and  a  quick 
decision  in  larger  matters. 

The  measure  was  very  successful.  In  the  first  nine 
months  the  Industrial  Commissioner  intervened  in  36 
cases.  He  effected  a  final  settlement  in  15  cases,  made  a 
temporary  arrangement  in  20  cases,  and  failed  in  only 
one  case,  where  the  employer  refused  to  assist  him,  but 
after  a  long  struggle  accepted  terms  which  the  Com- 
missioner had  offered  him.  In  January,  1913,  the  Com- 
missioner pointed  out  that  the  compulsory  terms  of  his 
authority  were  of  little  use,  since  his  intervention  was 
welcome.  In  December,  1913,  he  reported  that  he  had 
dealt  with  142  cases  since  his  appointment.  In  83  cases  he 
prevented  the  threatened  stoppage  of  work.  In  56  cases 
where  work  had  ceased,  the  stoppages  were  curtailed  and 
concluded.    In  only  three  cases  did  conciliatory  efforts  fail.^ 

The  same  Act  provided  for  the  appointment  of  Concilia- 
tion Committees  in  the  larger  occupations  and  callings, 
to  consist  of  not  more  than  two  representatives  each  of 
employers  and  employees,  with  a  chairman.  The  meetings 
of  this  committee  constituted  a  voluntary  conference, 
which,  it  was  believed,  would  be  of  value  in  such  an 
industry  as  mining,  where  disputes  constantly  arise  over 
small  matters.  Even  if  a  Board  existed  for  the  industry, 
the  committee  could  negotiate  an  agreement,  which  would 
be  registered  under  the  Act.  Conciliation  Committees 
were  appointed  for  the  three  colliery  districts  of  the  state, 
and  have  sat  intermittently.  Their  value,  however,  has 
been  nullified  by  the  undisciplined  miners,  whose  leaders 
could  neither  direct  nor  restrain  them. 

Notwithstanding  these  and  other  difficulties,  the  Act 
of  1918  removed  all  restrictions  on  the  power  of  the  In- 
dustrial Commissioner,  and  practically  increased  the  power 

'  Commonwealth  Labour  Bulletiti,  No.  8,  p.  287, 

24 


and  scope  of  Conciliation  Committees.  In  the  strike  crisis 
of  1917  the  coal  miners  went  back  to  work  on  terms 
which  involved  the  appointment  of  a  general  Conciliation 
Committee  for  the  coal  trade,  and  local  Conciliation  Com- 
mittees for  each  colliery.  In  the  Act  of  1918  provision 
was  made  for  "shop  committees,  conciliation  committees, 
industrial  councils,  or  voluntary  committees  formed  for 
the  purpose  of  adjusting  the  industrial  relationship  of 
employer  and  employee."  All  industrial  matters  were 
to  be  left  to  these  councils,  except  wages  and  working 
hours,  which  still  remained  under  the  jurisdiction  of 
Boards.  All  decisions  of  these  industrial  councils  may  be 
referred  to  the  Court  of  Industrial  Arbitration,  which 
may  register  them  as  awards. 

The  recent  amending  Act  also  instituted  a  Board  of 
Trade,  with  widely  extended  powers.  On  it  is  cast  the 
responsibility  of  initiating  the  new  machinery  for  con- 
ciliation. The  problems  involved  in  apprenticeship  are 
enunciated  in  full  and  included  in  its  functions.  But  its 
most  important  function,  outside  of  provision  for  concilia- 
tion, is  to  collect  information  which  will  enable  the 
Arbitration  Court  to  determine  a  living  wage.  On  this 
basis  of  fact,  the  Court  will  declare  once  a  year  what  is 
to  be  the  living  wage  for  males  and  for  females  for  that 
year,  either  in  the  state  as  a  whole  or  in  any  defined 
area.  This  general  declaration  will  entitle  every  employee 
in  any  form  of  industry,  whether  regulated  by  arbitration 
or  not,  to  such  a  wage.  In  addition,  a  distinct  minimum 
wage  may  be  fixed  for  each  industry,  taking  account  ot 
questions  of  skill  and  continuity  of  employment.'  The 
Court  is  empowered  also  to  fix  the  quantity  of  work  or 
services  to  be  required  for  that  wage. 

Results  of  the  System 

Statistical  Basis.  It  is  customary  to  criticise  the  New 
South  Wales  system  by  its  success  or  failure  in  reducing 
industrial  disputes.  Even  were  this  an  adequate  measure 
of  the  success  of  a  system  which  has  other  aims  than  that 
of  the  regulation  of  strikes  and  lockouts,  the  information 
does  not  exist  in  statistical  form  for  discriminating  judg- 
ment. The  Commonwealth  Statistician,  whose  figures  are 
comparable  throughout  Australia,  and  whose  definitions  of 
"strike"  and  "lockout"  are  valid,  has  collected  statistics 
only  since  1913.     The  Industrial  Registrar  for  New  South 

^  See  Appendix,  p.  50,  Sect.  24A  (2\ 

25 


Wales  has  prepared  an  exhaustive  report  of  industrial 
dislocations  since  1908,  but  his  figures  are  not  exact  earlier 
than  1912.  His  definition  of  "dislocations"  is  so  much 
broader  than  that  of  the  Commonwealth  Statistician  that 
comparison  is  impossible.  Moreover,  his  figures  give  a 
misleading  impression  unless  carefully  analyzed,  since  some 
disputes  or  dislocations  referred  to  are  not  strictly  strikes. 
Further,  he  has  stated,  after  analysis  of  the  causes  of  the 
dislocations  scheduled,  that  a  proportion  of  workdays 
amounting  to  27  per  cent  in  general,  and  to  40  per  cent 
in  the  mining  industry,  was  lost  on  account  of  "causes 
which  could  not  practically  or  effectively  be  adjudicated 
upon  by  Courts  or  Boards."  '  This  indicates  that  an 
endeav^or  to  measure  the  success  of  arbitration  in  New 
South  Wales  by  the  number  of  strikes  requires  careful 
analysis  and  discrimination. 

Disproportionate  Influence  of  the  Mining 
Industry 

This  difficulty  in  the  evaluation  of  arbitration  as  a 
remedy  for  strikes  is  accentuated  by  the  disproportionate 
number  of  strikes  in  the  mining  industry.  At  the  census 
of  1911  this  industry  embraced  little  more  than  5  per  cent 
of  the  total  labor  force  of  the  state.  Yet  it  contributes 
overwhelmingly  to  the  number  of  disputes  in  the  state. 
The  following  table  shows  its  sinister  influence. 


TABLE  2:  number  AND  PERCENTAGE  OF  INDUSTRIAL  DIS- 
LOCATIONS IN  NEW  SOUTH  WALES,  I908-I916,  ACCORDING 
TO    INDUSTRIES,    MINING    AND    NON-MINING  ^ 


Year 

Number  of  Disputes 

Percentage 

Total 

Mining 

Non-Mining 

Mining 

Non-Mining 

1908 

223 

140 

83 

62.8 

37.2 

1909 

151 

91 

60 

60.3 

39.7 

1910 

136 

49 

87 

36.0 

64.0 

1911 

106 

52 

54 

49.1 

50.9 

1912 

127 

80 

47 

63.0 

37.0 

1913 

169 

93 

76 

55.0 

45.0 

1914 

313 

220 

93 

70.3 

29.7 

1915 

314 

225 

89 

71.7 

28.3 

1916 

344 

209 

135 

60.8 

39.2 

Total 

1,883 

1,159 

724 

61.6 

3S.4 

^  New  South  Wales  Industrial  Gazette,  Vol.  I\',  p.  1110. 
^  New  South  Wales  Industrial  Gazette,  Vol.  I\',  p.  1079  et  seq.;   Vol.  VII,  p. 
552  et  seq. 

26 


In  other  words,  61.6  per  cent  of  the  industrial  disloca- 
tions experienced  in  New  South  Wales  in  the  period  1908- 
1916  took  place  in  the  minini^  industry.  The  effect  upon 
the  statistics  of  the  whole  Conimonwealth  is  similar. 
To  measure  it,  account  must  be  taken  of  the  loss  in 
working  days  and  wages  and  of  the  number  of  disputes 
which  lasted  one  day  or  less,  since  the  differences  over 
working  conditions,  so  characteristic  of  miners,  are  of 
that  duration  in  many  cases.  This  is  done  in  Table  3, 
which  also  gives  similar  data  for  the  state  of  Victoria  and 
for   the  entire   Commonwealth.^ 

This  table  shows  to  what  extent  a  single  industry  in  one 
state  of  the  Commonwealth  has  fostered  industrial  unrest 
and  defeated  the  aim  of  arbitration  to  provide  a  speedy 
and  peaceful  means  of  settling  industrial  disputes.  Of  the 
total  of  1,855  disputes  in  the  Commonwealth  during 
1913-1917,  New  South  Wales  had  1,273  or  68.6  per  cent, 
but  of  the  total  of  933  disputes  in  the  mining  industry  it 
had  842  or  90.3  per  cent.  Of  the  disputes  within  its  own 
borders  during  that  period,  66.1  per  cent  occurred  in  the 
mining  industry,  as  compared  with  a  similar  figure  in  the 
whole  Commonwealth  of  50.3  per  cent.  The  workdays 
lost  in  the  mining  industry  formed  42.9  per  cent  of  the 
total  for  the  whole  Commonwealth,  but  aggregated  51.3 
per  cent  for  New  South  Wales.  Almost  the  same  ratio 
obtains  if  the  comparison  is  made  on  the  basis  of  loss  of 
wages.  Of  the  total  number  of  disputes  lasting  one  day 
or  less,  during  the  years  1914-1917,  those  in  the  mining 
industry  constitute  no  less  than  75.9  per  cent.  Yet  the 
mining  industry  embraces  but  a  small  fraction  of  the 
total  workers  in  the  state. 

It  is  clear,  therefore,  that  the  mining  industry  tends  to 
distort  the  trend  of  industrial  disputes  in  Australia,  and 
that  this  influence  comes  principally  from  New  South 
Whales.  Mining  disputes  in  Victoria  form  only  22.9  per  cent 
of  the  total,  and  the  workdays  lost  thereby  only  21,7  per 
cent.  The  relative  frequency  of  disputes  in  this  industry 
is  due  mainly  to  the  irresponsible  character  and  tempera- 
ment of  the  miners.  In  general,  their  leaders,  even  when 
definitely  preferring  arbitration   to  the  strike,  have  not 

^  It  should  be  remembered  that  disputes  .ire  differently  defined  by  the 
Commonwealth  Statistician,  and  that  the  figures  in  Table  2  are  not  likely  to  be 
identical  with  the  fiaures  for  New  South  Wales  for  the  same  vears  in  Table  3. 


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been  able  to  exert  a  restraining  influence.  In  consequence, 
trifling  disturbances,  often  lasting  less  than  a  day,  have 
been  characteristic  of  the  industry. 

General  Summary 

The  results  achieved  by  arbitration  in  New  South  Wales 
can  most  definitely  be  discussed  in  connection  with  those 
registered  for  the  whole  Commonwealth.^  In  general,  it 
is  claimed  that  it  has  increased  wages,  though  its  influence, 
as  in  Victoria,  cannot  be  clearly  difl^erentiated  from  that  of 
the  rising  prosperity  of  the  state.  A  sharp  rise  in  commod- 
ity prices  in  1912  has  made  real  wages  lower  than  they 
were  at  any  time  subsequent  to  1901.  The  use  of  the 
principle  of  the  cost  of  living  as  determining  the  living 
wage  has  tended,  however,  to  preserve  a  normal  relation 
between  family  expenditures  and  nominal  wages. 

The  system  has  maintained  shorter  hours.  The  8-hour 
day,  48  hours  per  week,  is  a  maximum,  while  a  44-hour 
week  is  worked  in  many  industries. 

The  cost  to  the  state  of  administering  the  system,  as 
shown  by  Table  4  below,  is  strikingly  small;  moreover, 
the  cost  per  individual  Board  and  award  has  decreased 
sharply. 

TABLE  4:    COST  OF  THE  INDUSTRIAL  BOARDS  OF  NEW  SOUTH 
WALES    FOR    I9O9-I916 


Cost  of  Boards 

Year  ending  June  30 

Cost  per  Board  (1) 

Total  (£) 

Per  Board  (£) 

1909 

3,116 

95 

463 

1910 

8,620 

86 

419 

1911 

7,524 

84 

409 

1912 

10,473 

91 

443 

1913 

13,653 

66 

321 

1914 

14,455 

67 

326 

1915 

9,154 

41 

200 

1916 

14,210 

59 

287 

(See  New  South  Wales  InduslrialGazeile,  Vol.  IV.  p.  425;   Year  Book.  1916.  p.  S-'.i.) 

By  insisting  on  collective  bargaining,  and  allowing 
only  unions  to  approach  the  Court  on  behalf  ot  employees, 
it  has  deliberately  strengthened  and  encouraged  unionism. 
In  1903  the  number  of  trade  unionists  in  the  state  was 


^  See  pp.  39-46. 


29 


estimated  at  73,301,  in  1914  it  had  risen  to  237,714,  and 
in  1916  to  244,074.1  q^  this  latter  number,  230,138  were 
males,  representing  64.0  per  cent  of  the  estimated  total 
number  of  male  employees,  and  13,936  were  females,  or 
16.8  per  cent  of  the  estimated  total  number  of  female 
employees. 

On  its  administrative  side,  the  compulsory  features  of 
the  system  have  not  been  effective  in  preventing  disputes. 
They  have  reduced  the  seriousness  and  probably  the  num- 
ber of  major  strikes,  but  have  been  accompanied  by  an 
increase  in  small  and  irresponsible  disturbances.  The 
system  had  not,  at  least  prior  to  the  Act  of  1918,  de- 
veloped machinery  adequate  for  handling  the  frequent 
difficulties  in  the  mining  industry.  Its  conciliation  fea- 
tures, though  promising,  have  not  had  the  same  scope  as 
its  compulsory  features.  Its  Wages  Boards  have  not 
been  an  unqualified  success.  They  have  never  been 
able  to  utilize  the  conciliatory  machinery  of  the  Victorian 
system;  they  have  become  tedious  and  clumsy  imitations 
of  the  Court  of  Industrial  Arbitration,  and  seem  destined 
either  to  pass  away  before  the  new  industrial  committees,. 
or,  at  least,  to  sink  to  a  position  of  subordinate  importance^ 

The  system  has  the  support  of  public  opinion  in  New 
South  Wales.  Not  even  employers  would  suggest  a  return 
to  the  principle  of  individual  bargaining.  No  considerable 
body  of  opinion  would  exchange  it  for  the  Wages  Boards 
of  Victoria.  Judged  on  its  social  side,  it  is  recognized  as 
a  success.  The  objections  to  it  are  economic.  The  ulti- 
mate test  of  its  efficiency  is  whether  these  social  advan- 
tages are  of  such  worth  as  to  counterbalance  its  economic 
disadvantages. 

1  New  South  Wales  Statistical  Register,  1903-1904.     Commonwealth  Labour- 
Report,  No.  7,  p.  343. 


30 


IV 

THE   COMMONWEALTH   CONCILIATION 
AND  ARBITRATION  ACT 

Comparison  with  the  New  South  Wales  Act 

The  Federal  Constitution  of  Australia,  which  became 
operative  on  January  1,  1901,  contained  a  provision 
granting  the  newly  created  Commonwealth  the  right  to 
legislate  concerning  labor  disputes  extending  beyond  the 
limits  of  any  one  state.  In  1904  the  first  Commonwealth 
Conciliation  and  Arbitration  Act  was  passed.  It  was 
amended  in  1909,  1910,  1911,  1914  and  1915,  while  further 
amendment  is  proposed  to  cover  the  conflict  of  state  and 
federal  awards.  By  the  Arbitration  (Public  Service) 
Act  of  191 1,  the  machinery  of  the  Federal  Court  was  made 
applicable  to  claims  originating  from  employees  in  the 
Commonwealth  Public  Service. 

Among  the  chief  objects  of  the  Act  are  the  following: 

(a)  To  prevent  lockouts  and  strikes  in  relation  to  industrial 
disputes; 

(b)  To  provide  for  the  exercise  of  the  jurisdiction  of  the 
Court  by  conciliation  with  a  view  to  amicable  agree- 
ment between  the  parties; 

(c)  To  facilitate  and  encourage  the  organization  of  repre- 
sentative bodies  of  employers  and  employees  and  the 
submission  of  industrial  disputes  to  the  Court  by  or- 
ganizations, and  to  permit  representative  bodies  of 
employers  and  of  employees  to  be  declared  organizations 
for  the  purposes  of  this  Act; 

(d)  To  provide  for  the  making  and  enforcement  of  industrial 
agreements  between  employers  and  employees  in  relation 
to  industrial  disputes.* 

These  clauses  reveal  a  similarity  to  the  original  New 
South  Wales  Act  of  1901.  There  is  the  same  encourage- 
ment to  organization,  and  the  same  provision  tor  organiza- 
tions, rather  than  individuals,  to  submit  matters  to 
the   Court.     Unionists    are    protected    by    a   penalty    of 

'Commonwealth  Conciliation  and  Arbitration  Act,  1904-11,  Sect.  2. 

31 


£50  (^243)  against  an  employer  who  dismisses  them  for 
membership  in  a  union.  The  onus  of  proof  is  upon  the 
employer  to  show  some  other  definite  reason  for  dismissal. 
There  is  the  same  provision  for  industrial  agreements 
which  may  be  made  for  a  term  not  exceeding  five  years, 
and  which  are  binding  on  the  organizations  and  their 
individual  members.  There  is  similar  penalization  of 
strikes  and  lockouts,  the  penalty  being  fixed  at  £1,000 
($4,866). 

But  in  several  respects  the  Commonwealth  Act  differs. 
The  "common  rule"  clause  is  not  operative;  agreements 
aflFect  only  those  organizations  and  persons  bound  by 
them.  The  High  Court  of  Australia  has  decided  against 
the  constitutionality  of  the  "common  rule."  A  Federal 
award,  however,  at  least  within  the  industry  aflFected,  is 
equivalent  to  the  extension  of  the  common  rule,  since  the 
President  of  the  Court  secures  the  consent  of  both  em- 
ployers and  employees  to  action  in  the  Wages  Boards  of 
the  various  states  which  will  effect  the  same  purpose  as 
the  common  rule. 

The  most  characteristic  distinction  from  the  New  South 
Wales  Act  is  in  the  provision  for  conciliation.  The 
Commonwealth  Act  charges  the  President  of  the  Court 
of  Conciliation  and  Arbitration 

with  the  duty  of  endeavoring  at  all  times  by  all  lawful  ways  and 
means  to  reconcile  the  parties  to  industrial  disputes,  and  to  pre- 
vent and  settle  industrial  disputes,  whether  or  not  the  Court  has 
cognizance  of  them  in  all  cases  in  which  it  appears  to  him  that  his 
mediation  is  desirable  in  the  public  interest.' 

To  carry  out  this  purpose  he  may  summon  a  compulsory 
conference,  calling  thereto  any  person,  whether  directly 
concerned  with  the  dispute  or  not,  whose  presence  is 
thought  likely  to  conduce  to  the  prevention  or  settlement 
of  the  dispute.  The  penalty  for  failure  to  obey  a  summons 
to  such  conference  is  fixed  at  £500  (|2,433). 

Administrative  Machinery 

The  practical  administration  of  the  Commonwealth  Act 
centers  round  a  Court  of  Conciliation  and  Arbitration 
with  a  President,  who  is  one  of  the  Justices  of  the  High 
Court    of   Australia.     The    President    is    charged    with 

1  Commonwealth  Conciliation  and  Arbitration  Act,  1904-1911,  Sect.  16. 

32 


regulating  the  practice  and  procedure  of  the  Act,  and 
prescribing  the  duties  of  the  Industrial  Registrar  and 
other  officers  of  the  Court.  He  may  appoint  a  deputy  to 
take  his  place  in  his  absence,  to  assist  him  in  any  specified 
capacity  in  any  part  of  the  Commonwealth.  He  has 
original  jurisdiction  in  all  industrial  matters.  Should  he 
think  fit,  he  may  refer  any  question  of  law,  as  distinct 
from  questions  of  evidence  and  fact,  to  the  High  Court  for 
guidance.  In  several  matters  the  High  Court  has  limited 
the  jurisdiction  of  the  Arbitration  Court,  but  the  latter 
has  great  prestige  and  authority  and  has  been  described 
as  "the  industrial  arbiter  of  the  continent." 

The  President,  or  the  Court  in  its  corporate  capacity, 
takes  cognizance  of  disputes  when  they  are  referred  to  it 
by  either  the  Registrar  of  the  Court,  acting  in  his  public 
capacity,  by  any  industrial  organization  or  state  industrial 
authority,  or  by  the  President  after  an  unsuccessful 
attempt  at  conciliation.  State  courts  dealing  with  a 
dispute  must  cease  to  do  so  on  the  request  of  the  Com- 
monwealth Court.  In  the  hearing  and  determination  of  a 
dispute, 


The  President  shall  act  according  to  equity,  good  conscience, 
and  the  substantial  merits  of  the  case,  without  regard  to  tech- 
nicalities or  legal  forms,  and  shall  not  be  bound  by  any  rules  of 
evidence,  but  may  inform  ...  his  mind  on  any  matter  in  such 
manner  as  ...  he  thinks  just. 


Disputes  are  determined  either  by  industrial  agreements 
between  the  parties,  or  after  a  compulsory  conference  with 
the  President  of  the  Court,  or  by  an  award.  An  award  of 
the  Commonwealth  Court  may  lead  to  a  number  of 
agreements  between  the  parties  at  issue.  Thus,  in  1914 
and  1915,  out  of  224  separate  industrial  agreements  filed 
in  the  Commonwealth  Court,  no  less  than  175  were  made 
on  behalf  of  the  Federated  Engine  Drivers'  and  Fire- 
men's Association  in  terms  of  one  specific  award.'  The 
Court  has  power  to  appoint  a  Board  of  Reference,  con- 
sisting of  one  or  more  persons,  to  deal  with  matters  arising 
out  of  an  award,  but  the  High  Court  has  so  strictly  limited 
the  scope  of  the  President's  powers  of  reference  to  such  a 
Board  as  to  render  the  provision  nugatory. 

'Cf.  Commonwealth  Labour  Report,  No.  6,  p.  78;  No,  7,  p.  439. 

33 


Principles  in  the  Fixing  of  Wages 

Much  of  the  prestige  of  the  Commonwealth  Court  of 
Arbitration  is  due  to  the  fulness  and  clearness  with 
which  its  President,  Mr.  Justice  Henry  B.  Higgins,  has 
enunciated  the  principles  on  which  his  awards  are  based. 
The  general  support  given  these  principles  in  public 
opinion,  legislative  action,  and  the  social  philosophy  of 
Australia,  renders  their  enunciation  an  essential  part  of 
an  analysis  of  Australian  arbitration. 

Supreme  position  among  those  principles  which  deter- 
mine the  decisions  of  the  Court  is  given  to  that  of  the 
minimum  wage.  The  Act  itself  lays  little  stress  upon  the 
matter.  It  is  an  xAct  "  for  the  prevention  and  settlement 
of  industrial  disputes."  Its  ultimate  aim  is  the  securing 
of  industrial  peace.  But  the  President  of  the  Court  has 
found  the  payment  of  "something  like  a  living  wage" 
to  be  fundamental  to  such  a  result.  He  has  pointed  out 
that,  just  as  a  drowning  man  will  struggle  to  get  his  head 
above  water,  so  a  man  will  dispute  until  he  gets  "enough 
wherewith  to  renew  his  strength  and  to  maintain  his  home 
from  day  to  day."  The  direct  connection  between  in- 
dustrial unrest  and  insufficient  wages  has  led  the  Arbi- 
tration Court  to  give  most  attention  to  the  question  of  a 
minimum  living  wage. 

In  his  formulation  of  the  principle  upon  which  to  deter- 
mine this  wage,  Mr.  Justice  Higgins  has  invented  the 
formula:  "  the  normal  needs  of  the  average  employee,  re- 
garded as  a  human  being  living  in  a  civilized  community."^ 
He  has  made  this  concrete  by  finding  what  would  insure 
an  unskilled  workman  food,  shelter,  clothing,  frugal 
comfort,  and  provision  for  evil  days.     He  has  held,  also, 

that  regard  should  be  had  to  the  short  periods  of  employment, 
to  the  expenditure  of  money  and  of  time  in  getting  to  work,  to 
the  "broken  time"  of  the  employees,  to  the  fact  that  they  are 
paid  by  the  hours  of  actual  work,  and  to  the  general  rise  of  wages 
in  the  community. 

'  Legislative  definition  of  the  minimum  wage  in  terms  of  this  formula  has 
been  given  in  two  states, —  Western  Australia  and  Queensland.  The  provision 
in  the  Queensland  Industrial  Arbitration  Act  of  1916  reads:  "The  minimum 
wage  of  an  adult  male  employee  shall  be  not  less  than  is  sufficient  to  maintain 
a  well-conducted  employee  of  average  health,  strength,  and  competence,  and 
his  wife,  and  a  family  of  three  children,  in  a  fair  and  average  standard  of  comfort, 
having  regard  to  the  conditions  of  living  prevailing  among  employees  in  the 
calling  in  respect  to  which  such  minimum  wage  is  fixed,  and  provided  that  in 
fixing  such  minimum  wage  the  earnings  of  the  children  or  wife  of  such  employee 
shall  not  be  taken  into  account."  The  minimum  wage  for  an  adult  female 
employee  is  similarly  defined,  except  that  family  obligations  are  not  considered. 

34 


The  living  wage  has  been  adjusted  year  by  year,  since 
its  determination  in  1907,  in  accordance  with  the  changes 
in  the  purchasing  power  of  the  English  sovereign,  as  calcu- 
lated by  the  Commonwealth  Statistician.  Whenever 
this  wage  is  written  into  an  award  or  agreement,  it  is  the 
minimum  below  which  the  employer  must  not  go  except 
on  pain  of  prosecution. 

When  the  minimum  living  wage  has  been  fixed,  the 
added  wage  for  skill  has  next  to  be  determined.  This  was 
done  originally  by  determining  the  ratio  between  the  living 
wage  and  the  wage  for  skill  customary  in  the  industry. 
But  the  wage  for  skill  is  not  rigidly  enforced.  Subject  to 
the  approval  of  the  Court,  employers  may  bargain  with 
employees  for  a  somewhat  smaller  payment,  never,  how- 
ever, below  the  minimum;  but,  on  the  other  hand,  they 
are  free  to  pay  as  much  above  the  nominal  rate  for  skill 
as  they  choose. 

The  right  to  fair  wages  is  not  regarded  as  equivalent 
to  a  claim  upon  a  fair  proportion  of  the  profits.  Employees 
"run  no  financial  risks,  and  incur  no  liabilities,"  hence 
cannot  ask  to  share  in  profits. 

But  on  the  other  hand,  wages  are  a  first  charge  upon 
industry,  standing  on  the  same  level  as  the  cost  of  raw 
material.  A  fair  and  reasonable  remuneration  has  to  be 
paid  before  profits  are  ascertained.  The  capabilities  of  an 
industry  are  not  taken  into  account  by  the  Court,  so  far 
as  the  living  wage  is  concerned,  since  to  do  so  would 
make  want  of  skill  and  enterprise  on  the  part  of  an  em- 
ployer a  reason  for  the  stinting  of  laborers  in  their  prime 
necessities  of  life. 

If  a  man  cannot  maintain  his  enterprise  without  cutting  down 
the  wages  which  are  proper  to  be  paid  to  his  employees  —  at  all 
events,  the  wages  which  are  essential  for  their  living  —  it  would 
be  better  that  he  should  abandon  the  enterprise.' 

This  limitation  applies  more  specifically  to  the  minimum 
living  wage.  If  a  company  whose  financial  position  is  not 
good  is  willing  to  pay  that  minimum,  it  may  bargain  with 
its  skilled  workers  for  a  wage  lower  than  their  customarv 
wage,  and  they  are  at  liberty,  so  far  as  the  Court  is  con- 
cerned, to  accept  it. 

1  Mr.  Justice  Higgins,  in  Commomveakh  Jriitnuiofi  Reports,  Vol.  Ill,  p.  32; 
usually  cited  thus:   III  C-  A.  R.  p.  32. 

35 


While  restrictions  on  the  freedom  of  employers  are  im- 
posed by  this  system,  in  common  with  any  compulsory 
system  of  wage-fixing,  their  professed  purpose  is  to  limit 
state  interference  to  matters  affecting  the  lives  and  health 
of  employees.  Some  idea  of  their  extent  and  of  the 
principles  upon  which  they  are  based  is  to  be  found  in 
the  following  quotations  from  decisions  of  the  President 
of  the  Court: 

My  principle  is  to  interfere  as  little  as  possible  with  employers 
in  the  administration  of  their  business,  to  interfere  only  so  far 
as  to  protect  human  lives  from  the  undue  pressure  which 
profit-making  often  involves,  and  as  to  rectify,  in  the  interests 
of  industrial  peace,  matters  of  grave  injustice.    (IV  C.  A.  R.  p.  73.) 

I  conceive  it  to  be  my  duty  to  leave  every  employer  free  to 
carry  on  his  own  business  on  his  own  system,  that  he  may 
make  the  greatest  profit  within  his  reach,  so  long  as  he  does  not 
perpetuate  industrial  trouble  or  endanger  industrial  peace;  and 
that  means,  so  long  as  he  satisfies  the  essential  human  needs  of 
his  employees,  and  does  not  leave  them  under  a  sense  of  in- 
justice.    (IV  C.  A.  R.  p.  18.) 

In  the  strain  of  competition,  the  pressure  on  the  employer  is 
often  very  great,  and  he  ought  to  be  free  to  choose  his  employees 
on  their  merits  and  according  to  his  own  exigencies,  free  to  make 
use  of  new  machines,  of  improved  methods,  of  financial  advan- 
tages, of  advantages  of  locality,  of  superior  knowledge  —  free, 
in  short,  to  put  the  utmost  pressure  on  anything  and  everything, 
except  human  life.     (IV  C.  A.  R.  p.  18.) 

I  recognize  as  fully  as  anyone  the  responsibility  of  interfering 
with  an  employer  in  the  management  of  his  business;  but 
after  all,  the  interference  is  of  a  very  limited  character.  It  is 
analogous  to  the  interference  of  sanitary  authorities.  Just  as  the 
employer  has  to  comply  with  sanitary  arrangements  prescribed 
by  competent  authorities,  so  he  has  to  comply  with  certain  in- 
dustrial arrangements  prescribed  by  the  award.  (V  C.  .■\.  R. 
p.  100.) 

I  certainly  do  not  feel  justified  in  ordering  the  Company  to 
continue  mining  operations  under  the  circumstances....  It  is 
not  for  the  Court  to  dictate  to  employers  what  work  they  should 
carry  on.  It  can  merely,  in  such  a  case  as  this,  prescribe  fit  con- 
ditions for  human  labour  if  the  company  employ  it.  (Ill  C.  A.  R. 
p.  35.) 

I  am  very  loth  to  interfere  with  the  discretion  of  an  employer 
in  selecting  his  employees;  and  I  certainly  shall  not  compel  him 
to  obey  any  mandate  or  opinion  of  the  union.     (V  C.  A.  R.  p.  168.) 

36 


When  an  employer  is  tolii  that  he  must  not  pay  his  em- 
ployees less  than  a  stated  minimum  wage,  it  is  only  fair  that  his 
hands  should  be  free  to  select  whom  he  will  employ.  .  .  . 
Unfortunately  many  of  the  employers  who  come  before  this 
Court  abuse  this  freeilom  of  choice  by  using  it  to  punish  union 
officials;  and  it  is  the  duty  of  this  Court,  working  under  an 
Act  which  avowedly  encourages  unionism  (see  Section  2)',  to 
check  this  abuse  to  the  utmost  of  its  power.  (VII  C.  A.  R. 
p.  147.) 

Social  considerations  are  intimately  interwoven  into 
the  principles  upon  which  the  living  wage  is  based.  The 
wage  is  calculated  for  a  married  man  with  children,  be- 
cause a  wage  that  makes  marriage  a  luxury  is  held  to  be 
neither  fair  nor  reasonable.  A  single  man  receives  the 
same  wage,  without  discrimination,  since  he  is  potentially 
the  head  of  a  family.  The  minimum  wage  for  women  is 
based  on  the  assumption  that  they  have  to  provide  for 
themselves,  and  not  for  a  family.  Considerations  of 
health  enter  also  into  the  question  of  the  conditions  of 
labor  and  the  rate  of  wages.  Increased  wages  are  not 
to  be  regarded  as  a  set-ofF  to  unduly  long  hours,  unhealthy 
and  degrading  conditions,  or  unnecessary  risks  to  life  and 
health.  Leisure  also  is  regarded  as  essential  to  health 
and  industrial  peace.  To  enforce  it  under  certain  cir- 
cumstances has  involved  considerable  interference  with 
employers'  liberty  of  action.  But  any  reasonable  in- 
fringement which  secures  greater  industrial  peace  is  held 
to  be  justified.  For  the  public  interest  is  held  to  involve 
not  only  an  increase  in  production  but  also  in  human 
happiness.  Hence,  since  some  measure  of  conflict  is  in- 
herent in  industrial  relations,  social  welfare  is  to  be 
furthered  by  reducing  the  seriousness,  frequency,  and 
costliness  of  the  conflict  through  such  means  as  the  living 
wage  and  reasonable  conditions  of  labor.  On  this  social 
philosophy  is  based  the  whole  conciliation  and  arbitra- 
tion system  of  Australia. 

The  Commonwealth  Court  of  Arbitration  has  not  had 
to  deal  with  many  disputes.  During  the  years  1913-1917, 
as  will  be  seen  from  Table  6,  the  number  settled  under  this 
Court  amounted  to  only  twenty,  but  these  disputes, 
covering,  as  they  did,  employees  in  two  or  more  states  of 
Australia,  affected  large  interests  and  many  persons.  The 
subjects  in  dispute  comprised  practically  all  conditions  of 

'Commonwealth  Conciliation  and  Arbitration  Act,  1004-1911,  Sect.  2. 

37 

91901 


the  industry.  Thus,  a  claim  made  by  the  employees  of 
the  meat  industry  in  Victoria  and  South  Australia  in- 
cluded regulation  of  rates  of  pay,  hours  of  labor,  holidays, 
terms  and  conditions  of  employment,  and  preference  to 
unionists.  The  hearing  of  this  claim  occupied  the  atten- 
tion of  the  Court  for  forty-two  court  days.  There  were 
1,225  respondents  in  the  case,  and  the  printed  award 
covers  sixty  pages.  The  award  was  preceded  by  a  lengthy 
judgment  in  which  the  President  of  the  Court  entered  into 
a  full  discussion  of  wages,  prices,  piece  and  time  rates  of 
wages,  the  eflfect  of  wages  upon  prices,  budgets  of  income, 
questions  of  skill  and  efficiency,  waiting  time,  hours  and 
wages  in  small  shops  and  apprenticeship. 

In  short,  the  Commonwealth  Court  of  Arbitration  is 
significant,  less  for  the  number  of  disputes  it  handles 
than  for  their  size  and  importance,  and  for  its  success  in 
preventing  strikes.  No  investigation  is  entered  upon 
by  its  President  till  work  has  been  resumed,  and  only 
once  has  the  decision  of  the  Court  been  followed  by  a 
strike. 


38 


V 

GENERAL  RESULTS 

This  analysis  has  shown  that  a  tendency  exists  in  the 
AustraHan  states  toward  a  combination  of  the  methods  of 
conciHation  and  arbitration.  The  Victorian  Wages 
Boards,  although  starting  with  a  pure  system  of  concilia- 
tion, resort  to  arbitration  whenever  a  chairman  fixes 
wages  by  his  deciding  vote.  Further,  they  have  been 
strengthened  by  a  Court  of  Industrial  Appeals,  which  is 
in  form  and  essence  an  arbitration  court.  New  South 
Wales  started  in  1892  with  pure  conciliation.  When  this 
failed,  compulsory  arbitration  of  the  most  stringent  type 
was  substituted.  Since  1912,  conciliation  has  been  added 
in  ever  larger  measure  to  the  compulsory  arbitration 
which  remains  the  basis  of  the  system. 

The  evolution  of  the  South  Australian  system  was 
identical,  till  1912,  with  that  of  Victoria,  including  even 
a  Court  of  Industrial  Appeals.  In  that  year  compulsory 
arbitration  and  mediation  w^ere  introduced.  The  Queens- 
land system  was  one  of  Wages  Boards  on  the  Victorian 
model  till  1912,  after  which  it  became  an  imitation  of  the 
New  South  Wales  system.  Western  Australia  and  the 
Commonwealth  combine  conciliation  by  means  of  com- 
pulsory conference  with  compulsory  arbitration  through 
the  judicial  awards  of  a  Court  of  Arbitration. 

The  use  made  of  the  compulsory  conference  reveals  the 
same  admixture  of  compulsion  and  conciliation.  This 
provision  is  now  found  in  the  Commonwealth  and  West- 
ern Australia,  as  above  described,  also  in  New  South 
Wales,  Queensland,  and  South  Australia.  It  originated 
in  the  Commonwealth  Conciliation  and  Arbitration  Act 
of  1904,  in  the  first  draft  of  which  attendance  at  the  con- 
ference was  optional.  The  provision  in  consequence 
proved  a  failure.  From  1910  attendance  was  made  com- 
pulsory, and  that  aspect  has  been  incorporated  into  the 
legislation  of  the  four  states  above  mentioned.  Its  suc- 
cess has  been  striking.  Out  of  201  compulsory  conferences 
called  in    the   Commonwealth   and   the   four  states  over 

39 


various  periods,  183  were  directly  effective,  only  18  proving 
unsuccessful.' 

Results  on  Wage-Fixing.  The  relative  scope  of  the 
voluntary  and  compulsory  systems  in  wage-fixing  is 
illustrated  by  data  showing  the  methods  by  which  changes 
in  wage-rates  have  been  brought  about.  Figures  for  the 
whole  Commonwealth,  which  have  been  collected  since 
1913,  are  set  forth  in  Table  5.  These  figures  concern 
all  alterations  in  wage  rates,  whether  or  not  they  had 
technically  become  the  subject  of  a  dispute. 


TABLE  5:  CHANGES  IN  RATES  OF  WAGES  CLASSIFIED 
ACCORDING  TO  METHODS  BY  WHICH  EFFECTED.  COM- 
MONWEALTH OF  AUSTRALIA,  I913-I917.2 


Number  of  Changes 

1913 

1914 

1915 

1916 

1917 

By  voluntary  action  of  employers  . 

By  direct  negotiations 

By  negotiations,  intervention  or  as- 
sistance of  third  party 

By  award  of  Court  under  Common- 
wealth Act       

2 

30 

4 
3 

24 

213 

36 

12 

57 

1 

5 

31 

197 

62 

21 

63 

20 

9 

14 

202 

36 

51 
175 

9 

17 

30 

467 

72 

24 

75 

14 

35 

By     agreement     registered      under 
Commonwealth  Act 

By  award  or  determination  under 
State  Act     .    .        ...        .    . 

28 
310 

By     agreement     registered     under 
State  Act 

88 

Total 

312 

365 

365 

821 

574 

This  table  shows  that  out  of  a  total  of  2,437  changes  in 
the  five  years,  1,506,  or  61.8  per  cent,  were  settled  by  a 
third  party  or  by  an  award.  In  the  same  period  821 
changes,  or  33.7  per  cent,  were  obtained  by  means  of 
conciliation,  and  only  110,  or  4.5  per  cent,  by  the  volun- 
tary action  of  employers.  The  system  of  legal  regulation 
of  wages  has,  therefore,  a  firm  hold  in  Australia;  of  the 
various  systems  used,  that  of  arbitration  is  supreme. 

Where  such  a  great  number  of  changes  occur,  invariably 
bringing  an  increase  in  wages,  there  obviously  results  a 
considerable  and  widespread  advance  in  nominal  wages. 
The  312  changes  noted  in  1913  affected  166,132  persons, 
and  led  to  an  increase  of  £37,713   ($183,660)  per  week. 

'  Commonwealth  Labour  Bulletin,  No.  8,  p.  293. 

2  Common'xealth  Labour  Report,  No.  6,  p.  95;  No.  7,  p.  457;  No.  8,  p.  113. 

40 


The  365  changes  in  1914  affected  125,218  persons,  giving 
a  weekly  increase  of  £30,685  (?149,435).  In  1915, 
197,410  persons  received  an  increase  per  week  of  €51,905 
($252,777)  in  consequence  of  365  changes  in  rates  of 
wages.  The  821  changes  recorded  in  1916  distributed  a 
weekly  increase  of  £142,923  ($696,035)  among  492,487 
persons.^  In  1917,  a  year  of  great  industrial  disturbance, 
changes  were  fewer  than  in  the  previous  year,  totaling 
574,  affecting  292,910  persons,  and  giving  a  weekly  increase 
of  £81,007  ($394,504). 2 

The  Commonwealth  Statistician  estimates  that  nominal 
wages  increased  47.6  per  cent  between  1901  and  1917, 
although  effective  wages  had,  after  keeping  ahead  till 
1911,  dropped  behind,  and  in  1917  were  slightly  below  the 
index  number  for  1901.' 

The  average  nominal  weekly  wage  payable  to  male 
adult  workers  on  December  31,  1914,  was  £2  \5s.  Id 
($13.54),  and  for  females  £1  Is.  Sd.  ($6.67).^  The  mini- 
mum living  wage  at  that  date  for  a  family  with  two 
children  hall  been  fixed  at  £2  8j.  0^  m\M)}  On  De- 
cember 31,  1917,  the  average  nominal  weekly  wage  for 
males  had  advanced  to  £3  4j.  2d.  ($15.66)  and  for  females 
£1  IOj'.  5^.  ($7.41).^  At  the  same  date,  the  minimum  wage 
for  male  employees  varied  slightly  round  about  £3 
($14.60)  per  week. 

There  is  no  distinct  tendency  in  Australia  to  treat  the 
minimum  wage  as  a  maximum.  Special  work  and  quali- 
fications, responsibility,  long  and  trustworthy  service, 
are  compensated  for  by  higher  wages.  Yet  skilled  labor 
has  not  that  prestige  in  Australia  which  it  enjoys  in  other 
countries.  The  range  between  the  wage  scale  of  unskilled 
and  skilled  workmen  is  narrow.  This  is  largely  due  to 
the  certainty  with  which  arbitration  causes  the  wages  of 
adult  men  to  rise  toward  the  average  wage,  and  to  the 
preponderance  of  unskilled  labor  in  a  new  country. 
Nevertheless,  there  is  evidence  of  a  distinct  tendency 
toward  the  relative  undervaluation  of  skill.^ 

^Commonwealth  Labour  Reports,  No.  6,  pp.  89,91;    No.  7,  p.  457. 

■Commonwealth  Labour  Report,  No.  8,  p.  113. 

^  Commonwealth  Labour  Report,  No.  8,  p.  89. 

*  Commonwealth  Labour  Report,  No.  7,  pp.  427—428. 

5  Commonwealth  Arbitration  Reports,  Vol.  8,  p.  65;    N.  S.  W.  Industrial 
Gazette,  March,  1914. 

^  Commonwealth  Labour  Report,  No.  8,  p.  78. 

^See  the  evidence  in  C.  H.  Northcott:    "Australian  Social  Development," 
pp.  218-232. 

41 


Settlement  of  Disputes.  A  comparison  of  methods  of 
settlement  of  industrial  disputes  reveals  an  overwhelming 
preponderance  of  direct  negotiation  between  employers 
and  employees  or  their  representatives.  This  preponder- 
ance exists  whether  the  significance  of  the  disputes  be 
measured  by  their  total  number,  the  number  of  work- 
people involved,  or  any  other  measure.  Such  a  classifica- 
tion for  the  disputes  already  presented  in  Table  3  is  given 
in  Table  6. 


TABLE    6:     METHODS    OF    SETTLEMENT    OF    INDUSTRIAL    DIS- 
PUTES, COMMONWEALTH   OF  AUSTRALIA,   I9I3-I917  ^ 


Methods  of  Settlement 

Number  of  Disputes 

1913 

1914 

1915 

1916 

1917 

Total 

Negotiations. 

Direct    between    employers    and    em- 
ployees, or  their  representatives    .    .    . 

119 

247 

254 

319 

234 

1,173 

By  intervention  or  assistance  of  distinc- 
tive third  party  —  not  under  Common- 
wealth or  State  Industrial  Act      .    .    . 

17 

11 

29 

34 

38 

129 

Under  State  Industrial  Act. 
By  intervention,  assistance,  or  compul- 
sory conference 

19 

7 

3 

9 

12 

50 

By  reference  to  Board  or  Court    .    .    . 

22 

17 

5 

10 

13 

67 

Under  Commonwealth  Arbitration  andCon- 
ciliation  Act. 
By  intervention,  assistance,  or  compul- 
sory conference 

4 

5 

2 

6 

3 

20 

By  filling  places  of  workpeople  on  strike  or 
locked  out      .    .        

13 

16 

9 

18 

36 

92 

By    closing   down    establishments   perma- 
nently      

1 

4 

1 

6 

4 

16 

By  other  methods 

13 

30 

55 

106 

104 

308 

Total      

208 

337 

358 

508 

444 

1,855 

1  Commonwealth  Labour  Reports,  No.  5,  p.  83;   No.  6,  pp.  121,  123;   No.  7, 
p.  502;   No.  8,  p.  139. 

42 


On  this  count,  direct  conciliation  is  the  mode  of  settle- 
ment for  the  greater  number  of  strikes,  though  not  the 
more  serious  and  far-reaching  disputes.  Thus,  1,173,  or 
63.2  per  cent,  of  these  disputes  were  settled  by  direct 
negotiation  between  employers  and  employees  or  their 
representatives.  The  more  serious  strikes  come  before 
the  State  or  Commonwealth  industrial  tribunals.  In 
explanation  of  settlements  "  by  other  methods,"  which 
have  shown  some  increase  in  recent  years,  the  following 
statement  by  the  Commonwealth  Statistician  should  be 
considered: 

It  must  be  mentioned  that  a  large  number  of  stoppages  of 
work  occur  each  year,  principally  at  the  collieries,  without  any 
cause  for  such  stoppages  being  brought  officially  under  the 
notice  of  the  employers  or  their  representatives.  Such  stop- 
pages usually  last  for  one  day,  and  work  is  resumed  on  the 
following  morning  without  any  negotiations  for  a  settlement  of 
the  trouble  which  caused   the  stoppage.* 

The  figures  clearly  show  an  increase  in  the  number  of 
disputes  in  Australia  in  recent  years.  The  significance  of 
this  increase,  however,  is  greatly  modified,  first,  because 
many  of  these  controversies  were  trivial,  and  second, 
because  of  the  considerable  proportion  contributed  in  the 
mining  industry  by  a  small  minority  of  irresponsible 
mine  workers  who  have  been  highly  intolerant  of  union 
discipline.  It  is  recognized  that  at  times  such  discipline 
has  not  been  exerted  with  due  rigor.  The  failure  of  arbi- 
tration to  handle  this  small  minority  of  workers,  however, 
is  not  a  fair  criterion  of  its  efficiency  as  a  broad  policy, 
applied  in  the  Commonwealth  as  a  whole.  Except  for 
the  mining  industry  of  New  South  Wales,  the  industrial 
situation  in  Australia  has  in  general  been  normal. 

These  facts  are  confirmed  by  the  following  statement 
from  Mr.  George  S.  Beeby,  Minister  for  Labour,  speaking 
in  the  New  South  Wales  Parliament,  February  6,  1918: 

Year  by  year  the  irresponsible  and  unreasonable  strike  is  the 
one  that  has  been  increasing. ..  .The  big  strike,  which  does 
arise  from  resentment  at  some  oppressive  industrial  condition, 
very  rarely  occurs  in  this  state  today...  It  is  a  disorganized 
and  undisciplineil  trade-unionism  that  is  the  danger  in  any 
country. 

'  Commonwealth  Labour  Report,  No.  7,  p.  503. 

43 


Speaking  of  the  preponderance  of  strikes  in  mining 
districts,  he  asserted  that 

the  majority  of  the  strikes  which  have  occurred  in  the  mining 
districts  could,  with  the  slightest  exercise  of  discipline  by  the 
central  body  of  the  union,  have  been  prevented. 

With  respect  to  major  disputes  which  reach  the  Com- 
monwealth Court  of  Arbitration,  it  is  a  significant  com- 
ment on  the  operation  of  the  system  that  the  President 
of  that  Court,  Mr.  Justice  Higgins,  was  able  until  recently 
to  state  that  not  a  single  strike  had  occurred  against  any 
of  its  awards  or  decisions. 


44 


VI 

CONCLUSION 

The  following  conclusions  are  clearly  indicated  by  this 
analysis  of  arbitration  and  wage-fixing  legislation  in 
Australia: 

State  regulation  of  wages  and  of  industrial  dis- 
putes is  firmly  established  as  a  public  policy  in 
Australia.  The  methods  and  machinery  differ,  but 
the  fundamental  purpose  is  the  same:  viz.,  to 
reduce  industrial  friction. 

The  "living  wage"  as  a  minimum  is  definitely 
endorsed  by  the  state  as  the  principle  behind  all 
forms  of  conciliation  and  arbitration. 

Beyond  that  minimum,  a  wage  for  skill  is  fixed  in 
each  occupation,  but  not  so  rigidly  as  to  prohibit 
bargaining  between  employer  and  employee  for  a 
higher  wage,  or,  under  definite  conditions,  for  one 
somewhat  lower. 

The  minimum  wage  has  not  become  the  maxi- 
mum. The  average  wage  for  males  is  above  the 
basic  wage,  and  a  considerable  percentage  of 
workers  receive  an  added  wage  for  skill.  The 
system  tends,  however,  to  limit  the  reward  for 
extra  skill. 

Nominal  wages  have  risen,  but  to  what  extent 
arbitration  has  been  responsible  cannot  be  deter- 
mined; the  general  prosperity  of  the  country  has 
contributed  to  the  increase.  Effective  wages, 
however,  have  declined  somewhat. 

Trade  unionism  and  collective  bargaining  are  not 
only  recognized,  but  fostered,  as  a  national  policy. 
This  is  reflected  in  provisions  whereby  only  associa- 
tions of  either  employers  or  employees  may  initiate 
proceedings  before  Arbitration  Courts,  and  in  the 
rapid  growth  of  trade  unions  in  membership. 

The  system  has  not  prevented  industrial  dis- 
putes, which  have,  in  fact,  increased.  But  the 
number  of  major  disputes  is  small  and  is  decreas- 
ing.    Decisions  are  accepted  by  both  sides  without 

45 


serious  objection.     Strikes  result   mainly  from  con- 
ditions not  provided  for  in  awards. 

The  mining  industry  contributes  altogether 
disproportionately  to  industrial  disputes.  This  is 
largely  due  to  the  irresponsible  character  and 
temperament  of  the  miners,  who  often  disregard 
the  advice  of  their  leaders,  and  to  the  failure  of 
union  leaders  to  exert  their  authority. 

f^  In  the  practical  administration  of  arbitration 
systems  there  has  been  a  tendency  to  place 
increasing  stress  on  conciliation  without  abandon- 
ing compulsory  features. 

/"'^  The  right  to  strike  is  recognized,  but  is  sharply 
limited,  and  illegal  strikes  are  penalized. 

Public  opinion  in  Australia  considers  the  system 

effective.      It    is    credited    with    having   given    the 

working   classes,   who   form   a   large   section   of  the 

population,  a  higher  standard  of  living  by  guaran- 

i      teeing    them    at   least    a   living   wage.     In   general, 

i      there  is  no  tendency  in  Australia  to  give  up  any  of 

I      these    methods    of   arbitration.     Even    in    a   period 

when  effective  wages  are  falling,  the  Labour  party 

has  shown  no  general  desire  to  substitute  the  strike 

for  arbitration. 

Australian  arbitration  and  conciliation  systems  are  but 
one  manifestation  of  a  broad  social  policy,  which  involves 
intimate  regulation  of  conditions  affecting  wage-earners* 
interests.  The  system  as  a  whole  has  admittedly  involved 
an  economic  cost  in  reduced  efficiency  of  production. 
The  ultimate  test  is  whether  that  cost  is  justified  by  social 
advantages. 

It  should  be  repeated  that  the  underlying  political  and 
economic  conditions  in  Australia,  particularly  in  respect 
to  the  high  degree  of  unionization  of  labor  and  the  pres- 
ence of  a  labor  party  in  politics,  differ  sharply  from  those 
in  the  United  States.  These  differences  are  of  funda- 
mental importance  in  any  attempt  to  judge  the  practica- 
bility of  applying  Australian  experience  to  this  country. 
Nevertheless,  that  experience  clearly  establishes  the  value 
of  conciliation  and  of  some  form  of  arbitration  as  a 
means  of  reducing  industrial  friction. 

46 


Appendices 

List  of  Public  Documents  on  Arbitration  and  Wage-Fixing, 
Issued  by  the  Governments  of  Australia 

THE  COMMONWEALTH 

Commonwealth  Arbitration  Reports,  serially  and  anually  from  the  office 
of  the  Registrar,  Commonwealth  Court  of  Conciliation  and  Arbitration, 
Melbourne.  Labour  Bulletins  and  Labour  Reports,  quarterly  and  annually, 
respectively,  from  the  Commonwealth  Bureau  of  Census  and  Statistics, 
Melbourne.  These  publications  deal  with  wages,  trade  unions,  industrial 
disputes  and  other  industrial  subjects,  and  include  figures  for  the  whole  ot 
Australia. 

NEW  SOUTH  WALES 

Comparative   Legislation  Relating  to  the   Industrial  Classes,  Government 

Statistician,  Sydney. 

New  South  fFales  Industrial  Gazette,  monthly.  Department  of  Labour  and 

Industry,  Sydney. 

Industrial  Arbitration  Reports,  Government  Printer,  Sydney. 

VICTORIA 

Annual  Report,  Chief  Inspector  of  Factories,  Melbourne. 

The  Victorian  Labour  Laws. 

Report  on  Anti-Strike  Legislation,  1915. 

Report  on  Effects  of  Labour  Legislation,  1916. 

Wages  and  Prices  in  Australia. 

Reports  prepared  by  the  Secretary,  Department 
of  Labour,  Melbourne. 

QUEENSLAND 

Queensland  Industrial  Gazette,  monthly,  Department  of  Labour  and  Industry, 
Brisbane. 

SOUTH  AUSTRALIA 

Determinations  of  fVages  Boards,  Department  of  Labour  and  Industry, 
Adelaide,  S.  A. 

WESTERN  AUSTRALIA 

Reports  of  Proceedings  under  the  Industrial  Conciliation  and  Arbitration  Act 
Department  of  Labour  and  Industry,  Perth,  W.  \. 

47 


ABRIDGED  TEXT  OF  THE  COMMONWEALTH  CONCILIATION 
AND  ARBITRATION  ACT,  1904-1915 

An  Act  relating  to  Conciliation  and  Arbitration  for  the  Prevention  and 
Settlement  of  Industrial  Disputes  extending  beyond  the  Limits  of  any  one 
State. 

2.     The  chief  objects  of  this  Act  are: 

I.     To  prevent  lockouts  and  strikes  in  relation  to  industrial  disputes; 

II.  To  constitute  a  Commonwealth  Court  of  Conciliation  and  Arbitra- 
tion having  jurisdiction  for  the  prevention  and  settlement  of 
industrial  disputes; 

III.  To  provide  for  the  exercise  of  the  jurisdiction  of  the  Court  by 

conciliation   with   a   view   to   amicable   agreement   between   the 
parties; 

IV.  In  default  of  amicable  agreement  between  the  parties,  to  provide 

for  the  exercise  of  the  jurisdiction  of  the  Court  by  equitable 
award; 

V.  To  enable  states  to  refer  industrial  disputes  to  the  Court,  and  to 
permit  the  working  of  the  Court  and  of  State  Industrial  Authori- 
ties in  aid  of  each  other; 

VI.  To  facilitate  and  encourage  the  organization  of  representative 
bodies  of  employers  and  of  employees  and  the  submission  of 
industrial  disputes  to  the  Court  by  organizations,  and  to  permit 
representative  bodies  of  employers  and  of  employees  to  be 
declared  organizations  for  the  purposes  of  this  Act; 

VII.  To  provide  for  the  making  and  enforcement  of  industrial  agreements 
between  employers  and  employees  in  relation  to  industrial 
disputes. 

4.     In  this  Act,  except  where  otherwise  clearly  intended: .  .  . 

"Industrial  dispute"  means  an  industrial  dispute  extending  beyond  the 
limits  of  any  one  state  and  includes: 

(I)  any  dispute  as  to  industrial  matters,  and 

(II)  any  dispute  in  relation  to  employment  in  an  industry  carried  on  by 
or  under  the  control  of  the  Commonwealth  or  a  State,  or  any 
public  authority  constituted  under  the  Commonwealth  or  a 
State,  and 

(III)  any  threatened  or  impending  or  probable  industrial  dispute;.  .  . 

"Industrial  matters"  includes  all  matters  relating  to  work,  pay,  wages 
reward,  hours,  privileges,  rights,  or  duties  of  employers  or  employees,  or 
the  mode, terms,  and  conditions  of  employment  or  non-employment;  and 
in  particular,  but  without  limiting  the  general  scope  of  this  definition, 
includes  all  matters  pertaining  to  the  relations  of  employers  and  em- 
ployees, and  the  employment,  preferential  employment,  dismissal,  or 
non-employment  of  any  particular  persons,  or  of  persons  of  any  par- 
ticular sex  or  age,  or  being  or  not  being  members  of  any  organization, 
association,  or  body,  and  any  claim  arising  under  an  industrial  agree- 
ment, and  includes  all  questions  of  what  is  fair  and  right  in  relation  to 
any  industrial  matter  having  regard  to  the  interests  of  the  persons 
immediately  concerned  and  of  society  as  a  whole;.  .  . 

6.  (1)  No  person  or  organization  shall,  on  account  of  any  industrial  dispute, 
do  anything  in  the  nature  of  a  lockout  or  strike,  or  continue  any  lockout  or 
strike.     Penalty:  £1,000. 

48 


7.  Where  persons,  with  a  view  to  be  associated  as  employers  and  employees 

respectively,  or  representatives  of  such  persons,  have  entered  into  an  industrial 
agreement  with  respect  to  employment,  any  of  such  persons  who,  without  rea- 
sonable cause  or  excuse,  refuses  or  neglects  to  offer  or  accept  employment  upon 
the  terms  of  the  agreement,  shall  be  deemed  to  be  guilty  of  a  lockout  or  strike, 
as  the  case  may  be. 

8.  Any  organization  of  employers  or  employees  which,  for  the  purpose  of 
enforcing  compliance  with  the  demands  of  any  employers  or  employees,  orders 
its  members  to  refuse  to  offer  or  accept  employment,  shall  be  deemed  to  be 
guilty  of  a  lockout  or  strike,  as  the  case  may  be. 

9.  (1)  No  employer  shall  dismiss  any  employee  from  his  employment  or 
injure  him  in  his  employment  or  alter  his  position  to  his  prejudice  by  reason 
merely  of  the  fact  that  the  employee  is  an  officer  or  member  of  an  organization 
or  of  an  association  that  has  applied  to  be  registered  as  an  organization  or  is 
entitled  to  the  benefit  of  an  industrial  agreement  or  award.     Penalty.  £50. 

(3)  In  any  proceeding  for  any  contravention  of  this  section,  it  shall  lie  upon 
the  employer  to  show  that  any  employee,  proved  to  have  been  dismissed  or 
injured  in  his  employment  or  prejudiced  whilst  an  officer  or  member  of  an 
organization  or  such  an  association,  or  whilst  entitled  as  aforesaid,  was  dismissed 
or  injured  in  his  employment  or  prejudiced  for  some  reason  other  than  that 
mentioned  in  this  section. 

10.  (1)  No  employee  shall  cease  work  in  the  service  of  an  employer  by 
reason  merely  of  the  fact  that  the  employer  is  an  officer  or  member  of  an  or- 
ganization or  of  an  association  that  has  applied  for  registration  as  an  organiza- 
tion or  is  entitled  to  the  benefit  of  an  industrial  agreement  or  award.  Penalty: 
£25. 

(3)  In  any  proceeding  for  any  contravention  of  this  section,  it  shall  lie  upon 
the  employee,  proved  to  have  ceased  work  in  the  service  of  an  employer  whilst 
the  employer  was  an  officer  or  member  of  an  organization  or  such  an  association 
or  was  entitled  as  aforesaid,  to  show  that  he  ceased  so  to  work  for  some  reason 
other  than  that  mentioned  in  this  section. 

16.  The  President  shall  be  charged  with  the  duty  of  endeavoring  at  all  times 
by  all  lawful  ways  and  means  to  reconcile  the  parties  to  industrial  disputes,  and 
to  prevent  and  settle  industrial  disputes,  whether  or  not  the  Court  has  cogniz- 
ance of  them,  in  all  cases  in  which  it  appears  to  him  that  his  mediation  is  desir- 
able in  the  public  interest. 

16A.  (1)  The  President  may,  whenever  in  his  opinion  it  is  desirable  for  the 
purpose  of  preventing  or  settling  an  industrial  dispute,  summon  any  person  to 
attend,  at  a  time  and  place  specified  in  the  summons,  at  a  conference  presided 
over  by  himself. 

(I A)  "Any  person"  in  the  last  preceding  sub-section  includes  not  only  persons 
engaged  in  or  connected  with  an  industrial  dispute,  but  also  any  person  engaged 
in  or  connected  with  any  dispute  relating  to  industrial  mat  ters  (whether  extend- 
ing  beyond  the  limits  of  a  state  or  not),  and  related  in  any  way  to  an  industrial 
dispute;  and  also  includes  any  person,  whether  connected  with  an  industrial 
dispute  or  not,  whose  presence  at  the  conference  the  President  thinks  is  likely  to 
conduce  to  the  prevention  or  settlement  of  an  industrial  dispute. 

(2)  Any  person  so  summoned  shall  attend  the  conference  and  continue  his 
attendance  thereat  as  directed  by  the  President.     Penalty:     £500. 

(3)  The  conference  may  be  held  partly  or  wholly  in  public  or  in  private,  at 
the  discretion  of  the  President. 

25.  In  the  hearing  and  determination  of  every  industrial  dispute,  and  in 
exercising  any  duties  or  powers  under  or  by  virtue  of  this  .Act,  the  Court  or  the 
President  shall  act  according  to  equity,  good  conscience,  and  the  substantial 
merits  of  the  case,  without  regard  to  technicalities  or  legal  terms,  and  shall  not 
be  bound  by  any  rules  of  evidence,  but  may  inform  its  or  his  mmd  on  any 
matter  in  such  manner  as  it  or  he  thinks  just. 

40 


40.     (1)  The  Court,  by  its  award,  or  by  order  made  on  the  application  of  any 
organization  or  person  bound  by  the  award,  may; 

(a)  direct  that,  as  between  members  of  organizations  of  employers  or  em- 

ployees and  other  persons  (not  being  sons  or  daughters  of  employers) 
offering  or  desiring  service  or  employment  at  the  same  time,  prefer- 
ence shall,  in  such  manner  as  is  specified  in  the  award  or  order,  be 
given  to  such  members,  other  things  being  equal;   and 

(b)  prescribe  a  minimum  rate  of  wages  or  remuneration  (in  which  case  the 

Court  shall,  on  the  application  of  any  party  to  the  industrial  dis- 
pute, or  of  any  organization  or  person  bound  by  the  award),  make 
provision  for  fixing,  in  such  manner  and  subject  to  such  conditions  as 
are  specified  in  the  award  or  order,  a  lower  rate  in  the  case  of  em- 
ployees who  are  unable  to  earn  the  minimum  wage  so  prescribed. 

(2)  Whenever  in  the  opinion  of  the  Court,  it  is  necessary,  for  the  prevention 
or  settlement  of  the  industrial  dispute,  or  for  the  maintenance  of  industrial 
peace,  or  for  the  welfare  of  society,  to  direct  that  preference  shall  be  given  to 
members  of  organizations  as  in  paragraph  (a)  of  sub-section  (1)  of  this  section 
provided,  the  Court  shall  so  direct. 

73.  Any  organization  may  make  an  industrial  agreement  with  any  other 
organization  or  with  any  person  for  the  prevention  and  settlement  of  industrial 
disputes  existing  or  future  by  conciliation  and  arbitration. 


INDUSTRIAL  ARBITRATION  (AMENDMENT)  ACT,  1918, 
NEW  SOUTH  WALES 

Summary  of  Important  Amendments 

24A.  (1)  The  court  or  a  board  may  in  prescribing  minimum  wages  fix  the 
quantity  of  work  or  services  to  be  done. 

(2)  Whenever  an  award  relating  to  any  skilled  occupation  fixes  minimum 
wages  higher  than  the  living  wage,  the  amount  of  the  excess  of  such  minimum 
wages  above  the  living  wage  shall  be  the  same  in  the  case  of  males  and  females 
doing  the  same  class  of  work. 

(3)  The  court  or  a  board  shall,  as  far  as  is  consistent  with  the  maintenance 
of  industrial  peace,  deal  only  with  wages  and  hours  of  employment,  leaving  all 
other  matters  to  shop  committees,  conciliation  committees,  industrial  councils, 
or  voluntary  committees  formed  for  the  purpose  of  adjusting  the  industrial 
relationship  of  employer  and  employee.  A  judge  or  deputy  judge  of  the  court 
may  act  as  the  chairman  of  any  industrial  council. 

24B.  All  employees  engaged  in  rural  industries  shall  be  entitled  to  be  paid  the 
living  wages  declared  in  their  regard  by  the  Board  of  Trade,  but  with  the 
exception  of  employees  whose  conditions  of  employment  have  been  regulated  by 
any  award,  shall  not  be  otherwise  subject  to  the  provisions  of  this  Act. 

45.     The  following  strikes  and  no  others  shall  be  illegal: 

(a)  Any  strike  by  employees  of  the  Crown  or  of  any  Minister,  trust, 
commission,  or  board  exercising  executive  or  administrative  functions 
on  behalf  of  the  Government  of  the  State,  ....  or  by  employees 
engaged  in  any  contracts  for  military  or  naval  purposes. 

(b)  Any  strike  by  the  employees  in  an  industry,  the  conditions  of  which 
are  for  the  time  being  wholly  or  partially  regulated  by  an  award  or 
by  an  industrial  agreement:  Provided  that  any  union  of  employees 
may  render  an  award  which  has  been  in  operation  for  a  period  of  at 
least  twelve  months  no  longer  binding  on  its  members  by  the  vote  of  a 
majority  of  its  members  at  a  secret  ballot  taken  in  accordance  with 

50 


the  provisions  for  ballots  contained  in  this  Act  and  the  regulations 
thereunder  in  which  not  less  than  two-thirds  of  the  members  of  such 
union  take  part. 

(c)  Any  strike  which  has  been  commenced  prior  to  the  expiry  of  fourteen 
clear  days  notice  in  writing  of  intention  to  commence  the  same,  or 
of  the  existence  of  such  conilitions  as  would  be  likely  to  lead  to  the 
same  given  to  the  Minister  by  or  on  behalf  of  the  persons  taking  part 
in  such  strike. 

46.  In  the  event  of  an  illegal  strike  occurring  in  any  industry,  the  court 
may  order  any  trade  union,  whose  executive  or  members  are  taking  part  in  or 
aiding  or  abetting  the  strike,  to  pay  a  penalty  not  exceeding  £500. 

48.  (1)  The  Minister  may  at  any  time  or  from  time  to  time  during  the 
progress  of  any  strike,  or  whenever  he  has  reason  to  believe  that  a  strike  is  con- 
templated by  the  members  of  any  industrial  or  trade  union,  or  association  of 
employees,  direct  that  a  secret  ballot  or  secret  ballots  of  such  members  or 
employees  shall  be  taken  in  the  manner  prescribed  for  the  purpose  of  deter- 
mining whether  a  majority  of  such  members  or  employees  is  or  is  not  in  favour 
of  the  institution  or  continuance  respectively  of  the  strike. 

48B.     If  any  person 

(I)   aids  or  instigates  an  illegal  strike;  or 
(II)   obstructs  the  taking  of  a  ballot  under  this  .Act;  or 

(III)  counsels  persons  who  are  entitled  to  vote  at  such  ballot  to  refrain 
from  so  voting;  or 

(IV)  being  an  officer  of  a  union  or  association  refuses  to  assist  in  the  taking 
of  such  a  ballot  by  acting  as  a  scrutineer  or  providing  for  the  use  of 
the  returning  officer  and  his  assistants  such  registers  and  other  lists 
of  the  members  of  the  union  or  association  as  the  returning  officer 
may  require  or  otherwise;  or 

(V)  directs  or  assists  in  the  direction  of  an  illegal  strike,  or  acts  or  pur- 
ports to  act  upon  or  in  connection  with  a  strike  committee  in  con- 
nection with  an  illegal  strike; 

he  shall  be  deemed  guilty  of  a  default  of  public  duty,  and  upon  being  so  found 
by  the  court  shall  be  liable  to  a  penalty  not  exceeding  £50  or  imprisonment  tor 
a  period  not  exceeding  six  months. 

48C.  The  proprietor  and  publisher  of  any  newspaper  which  advises,  insti- 
gates, aids,  or  abets  an  illegal  strike  shall  for  each  offence  be  liable  to  a  penalty 
not  exceeding  £100. 

48D.  Any  person  who  induces  or  attempts  to  induce  any  person  to  take  part 
in  an  illegalstrike  shall  be  liable  to  a  penalty  not  exceeding  ten  pounds  or  to 
imprisonment,  with  or  without  hard  labour,  for  a  term  not  exceeding  one  month. 

79.  (1)  The  Board  of  Trade  shall  from  year  to  year  after  public  inquiry  as 
to  the  increase  or  decrease  in  the  average  cost  of  living  declare  what  shall  be 
the  living  wages  to  be  paid  to  adult  male  employees  and  to  adult  female  em- 
ployees in  the  state  or  any  defined  area  thereof.  In  declaring  such  living 
wages  the  Board  of  Trade  shall  make  a  separate  public  inquiry  into  the  cost  of 
living  of  employees  engaged  in  rural  occupations,  and  shall  make  a  separate 
declaration  as  to  the  living  wages  to  be  paid  to  such  employees. 

(2)  No  industrial  agreement  shall  be  entered  into  and  no  award  made  for 
wages  lower  than  such  living  wages. 

82.  The  Board  of  Trade  is  further  empowered  to  exercise  the  following 
functions  and  perform  the  following  duties: 

(a)  To  encourage  and  create  councils  of  employers  and  employees  for  the 
purpose  of  encouraging  the  proper  apprenticeship  ot  all  minors  and 
provide  for  the  welfare  of  juvenile  labour. 

51 


(b)  To  acquire  and  disseminate  knowledge  on  all  matters  connected  with 
industrial  occupations  with  a  view  to  improving  the  industrial  re- 
lationship between  employers  and  workers  and  to  combat  the  evils  of 
unemployment. 

(c)  To  collect  and  publish  information  relating  to  or  affecting  industrial 
conditions. 

(d)  To  propound  schemes  for  welfare  work,  and  report  to  the  Governor 
on  all  matters  relating  to  such  work  and  to  the  insurance  of  employees 
against  loss  or  injury  caused  by  unemployment,  sickness,  or  accident, 
or  industrial  diseases. 

(e)  To  report  on  any  matter  referred  to  as  to  the  prices  of  commodities, 
and  as  to  whether  or  not  monopolies  or  trade  rings  exist  for  the  purpose 
of  unfairly  keeping  up  the  prices  of  commodities. 

(f)  To  investigate  and  report  on  the  existence  of  sweating  in  an  industry. 

(g)  To  report  upon  the  productivity  of  industries,  the  number  of  employees 
in  any  industry,  and  the  effect  or  probable  effect  of  the  regulation  of 
the  conditions  of  any  industry  upon  such  productivity. 

(h)  To  consider  and  report  upon  the  industrial  efficiency  of  the  com- 
munity, the  organization  of  the  labour  market  and  opportunities  of 
employment,  and  all  questions  relating  to  unemployment. 

(i)  To  collect  and  publish  from  time  to  time  statistics  of  vital,  social,  and 
industrial  matters,  and  on  labour  employment  and  unemployment  in 
specific  industries,  and  on  other  prescribed  matters. 

(j)  To  encourage  and  assist  in  the  establishment  in  different  industries  of 
mutual  welfare  committees  and  industrial  councils,  and  of  subsidiary 
shop  committees  for  individual  enterprises. 

(k)  To  encourage  and  assist  schemes  for  mutual  co-operation  and  profit 
sharing  between  employers  and  employees. 

(1)  To  encourage  and  assist  in  the  establishment  of  hostels  for  women 
workers  and  workmen's  clubs  and  libraries. 

(m)    To  report  and  advise  on  schemes  for  the  better  housing  of  the  people. 

(n)  To  consider  and  report  upon  any  other  matter  referred  to  it  by  the 
Minister. 


52 


Publications 

of  the 

National    Industrial   Conference    Board 

15  Beacon  Street,  Boston,  Mass. 


Research  Report  No.  i.     Workmen's  Compensation  Acts  in  the  United  States 
Legal  Phase.     60  pages.     April,  1917.     Revised,  .August,  1919.     |l.f)0. 

Research  Report  No.  2.  .Anai.vsus  of  British  Wartime  Rei-orts  on  Hours  or  Work. 
AS  Related  to  Output  and  P'atigue,     58  pages.     November,  1917.     ;J1.00. 

Research  Report  No.  j.  Strikes  in  American  Industry  in  Wartime.  20  pages.  March, 
1918.     50  cents. 

Research  Report  No.  4.     Hours  of  Work  as  Related  to  Output  and  Health  or  Workers 

—  CorroN  Manufacturing.     64  pages.     March,  1918.     Jl.OO. 

Research  Report  No.  5.    The  Canadian  Industrial  Disputes  Investigation  Act.    28 

pages.     April,  1918.     50  cents. 
Research  Report  No.  6.    Sickness  Insurance  or  Sickness  Prevention?    24  pages.     .May 

1918.  50  cents. 

Research  Report  No.  7.     Hours  of  Work  as  Related  to  Output  and  Health  of  Workers 

—  Boot  and  Shoe  Industry.     76  p:iges.     June,  1918.     Jl.OO. 

Research  Report  No.  S.  Wartime  Employment  of  Wo.men  in  the  Metal  Trades.  80 
pages.     July,  1918.     ?1.00. 

Research  Report  No.  9.  Wartime  Changes  in  the  Cost  of  Living  —  July,  1914,  to 
June,  1918.     82  pages.     August,  1918.     ?1.00. 

Research  Report  No.  10.  .Arbitration  and  Wage-Fixing  in  .Australia.  52  pages.  Octo- 
ber, 1918.     ^1.00. 

Research  Report  No.  ii.  The  Eight-Hour  Day  Defined.  12  p.ages.  December,  1918. 
50  cents. 

Research  Report  No.  12.     Hours  of  Work  as  Related  to  Output  and  Health  of  Workers 

—  Wool  Manufacturing.     69  pages.     December,  1918.     #1.00. 

Research  Report  No.  ij.     Rest  Periods  for  Industrial  Workers.    55  pages.    Janu.iry, 

1919.  ?1.00. 

Research  Report  No.  14.    Wartime  Changes  in  the  Cost  of  Living  —  Ji'ly,  1914,  to 

November,  1918.     io  pages.     February,  1919.     75  cents. 
Research  Report  No.  15.     Problems  of  Industrial  Readjust.ment  in  the  United  States. 

58  pages.     February,  1919.     $1.00. 
Research  Report  No.  16.     Hours  of  Work  as  Related  to  Output  and  Health  of  Workers 

—  Silk  Manufacturing.     54  pages.     March,  1919.     ?1.00. 

Research  Report  No.  17.    Wartime  Changes  in  the  Cost  of  Living — Jlly,  1914,  to 

March,  1919.     31  pages.     May,  1919.     75  cents. 
Research  Report  No.  iS.     Hours   of  Work  as   Related  to  Output  and  Health   or 

Workers  —  Metal  Manufacturing  Industries.     62  p.iges.    July,  1919.     ;fl.OO. 
Research  Report  No.  19.     Changes  in  the  Cost  of  Living  — July,  1914,  to  July,  1919, 

31  pages.     September,  1919.     75  cents. 
Research  Report  No.  20.     Wartime  Changes  in  Wages  —  (September,  1914, —  .March, 

1919).     128  pages.     September,  1919.     ?1.50. 
Research  Report  No.  21.     Works  Councils  in  the  United  States.     135  pages.    October, 

1919.     ?1.50. 
Research  Report  No.  22.    The  Cost  of  Living  among  Wage-Earners  —  Fall  River, 

Massachusetts,  October,  1919.     18  pages.     November,  1919.     50  cents. 
Research  Report  No.  2j.    Conciliation  and  .Arbitration  in  New  Zealand.    46  pages. 

December,  1919.     ;fl.OO. 
Research   Report  No.   24.    The   Cost  of   Living   among   Wage-Earners  —  Lawrence, 

.   Massachusetts,  November,   1919.     21   pages.     December,   1919.     50  cents. 
Research  Report  No.  25.     Changes  in  the  Cost  of  Living,  July,  1914,  to  November, 

1919.     24  pages.     December,  1919.     75  cents. 
Research  Report  No.  26.     A  Works  Council  Manual.     32  pages.     February,  1920.     Jl.OU. 
Research  Report  No.  27.    The  Hours  of  Work  Problem  in  the  Five  Major  Industries. 

91  pages.     March,  1920.     ?1.00. 

RESEARCH  RFPORIS  IN  PRKPAHAllON 

Conciliation  and  .ARUixKAnoN  in   France. 

Federal  and  State  Agencies  of  Conciliation  and  Arbitr-xtion  in  the  Lnited  bXATES. 

Extent  and  Causes  of  Absence  among  Industrial  Workers. 

INDUSTRIAL  NEWS  SURVEY 

Weekly.     Important  industrial  news  in  concise  form.     1^2.00  per  year. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

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This  book  is  DDE  on  the  last  date  stamped  belou. 


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